Richard L. Hasen, Chancellor's Professor of Law and Political Science at the University of California, Irvine School of Law, is one of the nation’s leading experts on election law and campaign finance regulation. In a powerful new book, Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy, he underscores that the one of the most important outcomes from the 2020 election will be that it has been conducted in such a way that all sides accept the results.
In Election Meltdown, Hasen identifies four areas that can strain the election process to its limits: voter suppression, incompetence, dirty tricks and incendiary rhetoric. The book is rich with lessons learned — and red flags — for all stakeholders in the coming election, from voters, journalists and social media to those who actually administer elections.
Hasen talked with Governing about the steps election officials can take to reduce the potential for abuses and disruptions during the 2020 election.
I'm not a political polling expert, so I can just go by my own reading of what others have said, which is that there's a very good chance that the presidential race comes down to a few key states in the Electoral College. We know that the last time that happened, it came down to just 10,000 or so votes in one of the closest states, Wisconsin. There's certainly a real risk that it could be very close. I think that election officials have to prepare as though it’s going to be both a very high turnout election, and also a very close election.
Are there any main concepts or things you'd want to state, that state and local officials to be thinking about during this election season?
Especially now, with the focus on the coronavirus, the need for contingency planning has to be at the top of the list. Local election officials need to have detailed plan B's, in case of poll closures or in case of disruptions like power outages, some kind of natural disaster or some human activity to try to disrupt the elections.
To the extent possible, whatever plans are put in place should be announced in advance so that no one could claim that rules were being adopted, or put in place for political reasons. This kind of advanced planning and transparency is really one of the most important things that an election official can do to help ensure that people are confident that when rules need to be changed to deal with outside forces that, it's being done in a fair way.
Are there legal concepts that should stay top of mind as we move through all this?
There are a number of principles that come into play in elections. One that the Supreme Court has put forward is the idea that you don't want lots of changes in the rules just before the election, certainly court-ordered changes. That's why I think we're seeing a lot more litigation this time earlier on in the cycle over various election rules in a way to try to avoid what I've called the Purcell principle. It’s based on a United States Supreme Court case called Purcell v Gonzales, which said the courts need to be very wary of making last-minute changes. You will continue to see more litigation earlier in the election cycle in order to get the rules in place and get the legal standards in place well before the actual election.
Another principle that is very important in terms of thinking about running elections is idea that you're treating people equally in terms of their access to the ballot. The Supreme Court and other courts have made it clear that you can't treat some groups of voters better than others. If in one part of the state voters having a difficult time voting because of long lines and in other parts of the state it's easy, that raises some constitutional concerns.
Recently, the Arizona House passed a bill that would allow police at polling stations. Would that ever be appropriate?
I do think that there is a concern that having police in uniform at polling stations might intimidate or deter certain voters from coming to the polling place. Certainly, there's a role for police to play in the event that there are threats of violence. You might have to call on law enforcement to protect voters, but the very presence of police officers at polling places has been seen in the past as an attempt to intimidate and keep people away from polling places in minority communities. I think that jurisdictions need to be very careful in making sure that polling places are not only safe, but that they are welcoming to voters from diverse backgrounds.
What are some best practices that could reduce the possibility of voter suppression?
The main concerns there are attempts to put up barriers that make it harder for people to register, or to stay registered, and to actually vote. While it's important to have good list maintenance, really aggressive voter purges that potentially remove eligible voters from voting rolls are another thing. It’s kind of odd to think that people lose their constitutional rights if they choose not to exercise them for a few years. There are steps that could be taken that would be useful in lowering the chances that list maintenance will lead to disenfranchisement.
I think election officials need to be careful in terms of how they engage in this activity and they're doing that in a much better way now for the most part. There's a new interstate cooperative, a clearing house of voter registration information called ERIC [the Electronic Registration Information Center], which has made it easier to ensure that states are sharing information about voter registration.
It's important for states to ensure that once voters are registered, the procedures that are used in polling places to ensure that identity is checked, if that's required under state law, that poll workers are adequately trained as to what the rules are. One of the problems we've seen is confusion not only among voters, but also among poll workers as to what's required.
In some states, for example, you might be able to sign an affidavit rather than provide a piece of paper to verify your identity. Adequate poll worker training has got to be at the top of the things that the list in terms of avoiding problems of voter suppression.
In some cases, it's government itself that has engaged in voter suppression. How can that be addressed?
When you have intentional efforts to make it harder for people to register and vote for no good reason, the usual recourse is going to state or federal court. Peer pressure from other states doesn't really do the job. That's why I think we've seen a lot more litigation against certain actors who've shown some kind of history of not using fair rules in how they're administering the election. I think the courts have been good about protecting voting rights.
Should governments be working on outreach or education efforts to help assure voters that they are welcome?
I certainly think that there's a role for election officials to play in educating the public about the voting process and encouraging people to register, to vote, encouraging them to observe the processes and to ask questions. They can make information available to the media so that information can be further disseminated to the public.
These days, it's important for local election officials to have a social media presence, to be able to be responsive to people when there are complaints or issues and when there are hiccups, to explain in real time what's being done about them. There are certainly steps that could be taken proactively by government officials to make sure that they are a direct source of reliable information, especially given that we know sometimes unreliable information is being pushed out this way.
Incompetence administering an election is another potential problem. What are some of the most damaging mistakes election workers can make?
There are potential problems at each level of election administration. I've mentioned poll worker training being a major source of problems. In Detroit in 2016, for example, we saw that poll workers were so inadequately trained in how they ran their election processes that it was impossible to conduct a recount of those election systems. We've had problems with county election administrators who have failed in basic tasks such as being able to conduct recounts within the timeframe set by state law. We've had secretaries of state and other chief election officers of states that have had problems with running secure voter registration databases.
What's important is that there's adequate training and adequate resources. It’s hard to get an adequate budget for election administration in a lot of places. I think that there's not enough focus at the county level on how important election administration processes are until there's a problem.
Everyone's fear of not being the next Iowa caucus or Florida 2000 is what helps to motivate people to make sure that at each level in the process that there's adequate training and professionalization of election procedures.
Some states are implementing new voting technologies. Are you aware of a technological strategy that is especially valuable, or does it boil down to due diligence in regard to whatever is being done?
Well, ideally you don't want to roll out your brand-new election systems in such a high-stakes election as a presidential election. Unfortunately, it takes a lot of time to push changes through and so we are going to have a significant number of jurisdictions that are adopting new rules. It's really important for the procedures and any changes to be properly vetted, and for there to be enough practice to make sure that things are going to work adequately, and that the new systems are going to be able to handle the expected high turnout in the upcoming election.
It’s also important to ensure that there are backup plans in the event that the new rules or technology fail. What's the plan B going to be? So again, continuously planning is really important for these kinds of questions.
Dirty tricks are another problem you highlight. A bill was recently introduced in Illinois that could make it a felony to use a deep fake in an election. Do you think there'll be more things like that in coming months?
California has passed a law regulating deep fakes, as has Texas. This technology is really new and the danger of trying to regulate synthetic audio or video is the risk that it's going to infringe on First Amendment rights. I think a lot of this regulation needs to happen not at the level of government, which is subject to the First Amendment, but through pressure on social media, companies like Facebook to take steps to ensure that people are not being manipulated by false audio and false video.
I do think that the social media companies, including Facebook, are very attentive to this question and they're looking for ways to try to deal in real time with the risks that these processes play to people's ability to obtain reliable information about elections. One of the biggest risks of this kind of manipulated audio or video is not the risk that people are necessarily going to be taken in by the false information, but that they're going to tend to doubt reliable information. Voter are going to doubt their abilities to be able to separate truth from fiction, and I think that raises a different kind of problem in terms of voter competence.
State and local governments can’t control what gets put on Twitter or Facebook. What can they do within their own networks?
The most important thing for election administrators to do is to push out alternative, reliable information. For example, if local election administrators can be verified on Twitter or Facebook as speaking as government officials, that can help to send a signal to both the social media companies and to readers that a system is in place to get out reliable information. Voters can look for reliable information rather than being taken in by false or misleading information coming from outside sources.
What kinds of potential disruptions should officials be thinking about, developing ideas about of what they would do if they happened?
We can look to 2016 but, of course, that's fighting the last war. We can expect misinformation, attempts to probe voter registration databases, attempted hacking into election systems.
I think we need to think more broadly about what might happen in 2020. One of the concerns I raised in Election Meltdown is an attack on the electrical grid in a Democratic city in a swing state and how much havoc something like that could wreak.
When you're thinking about election security, you need to think not just about the election system itself, but about all of the government infrastructure that goes into supporting the entire process of getting people to the polls and getting them able to cast their ballots.
Why is it dangerous to use words like “stolen” or “rigged” in regard to an election?
Democracy depends on voters accepting the results of the election as fair, and losers agreeing to fight another day. To the extent that people start believing that elections are stolen or rigged, that creates issues of concern for the legitimacy of the process itself.
There’s not much that you can do as an election official to stop people from using incendiary rhetoric. But the more that you can do to have a fair and transparent process, the fewer people are going to be taken in by this kind of language because you'll be able to point to objective ways of demonstrating that the election was conducted fairly.
Really, the solution to the rhetoric is not other rhetoric, but instead a fair and well-run election process.
You talk about the importance of making it clear well in advance that it can take time to count votes properly. What about that?
One of the top things on my list of suggestions for the media is that they educate the public about the fact that good election administration means that counting takes time, especially in a high-turnout election where there are lots of absentee ballots coming in. It might be days, or in the case of California, even weeks before we get final results in an election. People need to be patient and they need to see that not as a flaw in the system, but as another safeguard in the system.
You've suggested that it would be much better to be doing this as a national effort, not as a state-by-state, county-by-county effort. Why should states should be willing to consider that and transfer that authority?
I don't expect that that kind of change would happen anytime in the near future. We have a very long tradition of this country of de-centralized election administration.
I was recently running a conference and one of the points that one of the speakers made is that it's hard for the local election administrator to go up against the Chinese army. Some of the threats and challenges that election administrators face are international in scope. Some of the problems require a kind of national response, and so a uniformity makes a lot of sense.
Hardening of the election infrastructure is somewhat easier if we're using a single system rather than using a multiplicity of systems across eight or 9,000 different election jurisdictions. I think that's one of the reasons why a nationalization of elections would make sense as a public policy matter. As I said, I don't expect that to happen anytime in the near future, but I do think that more cooperation between, federal, state and local authorities, and uniformity in how elections are administered, would be a helpful form of protection against outside interference.
As you have been out talking about the book, have you had any feedback that was unexpected or surprising to you?
People are very concerned about the upcoming election and they're concerned that we will not have a peaceful transition of power, that we will not have losers accepting the election results in November. The depth with which people have anxiety about this is he was even higher than what I expected.
In thinking about this from the perspective of local election officials, it just underlines the need for there to be transparency and clearly set rules so that more people will have confidence that the way the system is being administered is in a fair and easily understandable way.
Governing's opinion columns reflect the views of their authors and not necessarily those of Governing editors or management.