Rick Hasen On Voting From Home In A Crisis

Welcome to Another Way, the podcast produced by Equal Citizens, a nonpartisan pro democracy organization founded by Lawrence Lessig. This is Adam Ikim, the organization's campaign's manager. Before we begin the episode, as always, please consider supporting us on Patreon. With your support, we can keep this podcast going, especially in these difficult times times. To sign up, go to patreon.com/citizens that's P A T R E O N.com/citizens okay, now to the episode the coronavirus pandemic has disrupted our democracy and laid bare a shocking Our democracy is ill prepared to weather a crisis. Though our first priority must be to stop the spread of this deadly virus, it is imperative that we act quickly to ensure that any upcoming elections can proceed with maximum participation. No American should face a choice between their health and casting a ballot to dig into our election vulnerabilities and what we can do to address them. Jason Harrow, our Executive director, and I speak to Rick Hassan. Rick is a Professor of Law and Political Science at the University of California, Irvine. He is a nationally recognized expert in election law and campaign finance regulation. He is the author of numerous books. But most critical to this conversation is his newest the aptly named Election Dirty Tricks, Distrust and the Threat to American Democracy, which was published by Yale University Press earlier this year. Rick also runs the Election Law Blog, a critical source for practitioners and academics to stay up to date on the happenings in American democracy. As you will hear, our conversation touches upon a wide range of why time is of the essence to bolster our elections, what ideal congressional and state action would look like, and under what circumstances elections can be postponed. Needless to say, this may be one of the most timely Another Way episodes to date. We hope that you enjoy it and that you and your loved ones are staying safe.

Alright, so obviously the first priority right now should be to stop the spread of this terrible virus. But why should our lawmakers be also thinking about and revising election laws? Isn't this something they can just do later?

Well, I think it's not. And the what we saw recently in the primaries that were held and not held as this pandemic was really hitting the American public was it was. It was problematic. So in Ohio you had a governor who came out and said he didn't have the unilateral power to delay the primary, try to manufacture a court suit so he could be ordered to delay the primary. When that failed, he actually had his health official closed the polling places which led the Secretary of State to to delay the primary. It's not clear whether all of that complied with state law. And you know, although I think that the governor of Ohio, DeWine, was acting with the best of intentions, it's dangerous precedent for an executive to manufacture a way to delay an election. And then in places where the election did take place, such as in Illinois and Florida, we heard reports of problems, poll workers not showing up. And so some polling places not opened up. We saw reports of unsanitary conditions, you know, people standing in close lines. So what we saw is that if you try to run an election in the middle of a pandemic, you're going to have problems. And so we need to plan now for November. I certainly hope that by November we're back to something much more resembling normal. But maybe we're not. Maybe we have a, A, you know, a wave of closings like happened in 1918 when the kind of the flu came back. So for all of that is just a way of saying that we need to plan now. It takes a very long time to ramp up things like vote by mail in places that don't use it a lot. And so things need to happen now and Congress needs to fund it now if we're going to have something in place for November.

And we'll get a little bit more into the details of what you envision for a ideal congressional legislative package. But what's your rough estimate in terms

of how quickly do we need to act from a practical perspective to pass a law and make sure, and this is the critical point, that it can be administered properly because these things don't just happen in terms of a law is passed and magically our elections are changed. But any sort of big nationwide change in our elections requires tremendous coordination and work by election administrators, which is something we often don't think about. But can you talk a little bit about that in terms of how long should we be giving election administrators to make pretty robust changes to our elections to cope with this pandemic?

Well, first thing I would say is that states and state election administrators do not need to wait for Congress because I expect that in every state except for those states that already do all vote by mail, there's going to be a huge ramp up in the use of absentee balloting. And there need to be contingency plans for, you know, some kind of plan B in case polling places need to be closed or moved at the last minute. And so don't wait for Congress. Things need to happen now. I mean, one of the things that should be a no brainer for Congress despite the fact that it's so polarized and it's hard to get anything passed, especially election reform legislation is providing money to states because it's going to be expensive. It costs a lot more to run an absentee ballot operation, especially one that you're ramping up and or rolling out, you know, in a big way. You've got to pay for new voting equipment, scanners to read those absentee ballots. You're going to have to have election workers who can verify the identity of people who send in absentee ballots. We have to comply with the Voting Rights act, the parts that require language, ballot materials to be offered in different languages. It is complicated. Now is the right time to be planning for November. In fact, it's a little bit late to be planning for November, but now is when things have to happen.

But so if you think if Congress were to get its act together and states get their act together and pass a law, let's say before May, hopefully sooner, but would that give them as much, you know, enough time? Maybe not ideal amount of time, but essentially, if we can try and push something in the next month, month and a half, is that workable?

Well, you know, I'm not an election administrator. I can point to the National Vote at Home Institute's recent report which said that April 15 should be seen as the date by which things need to get moving. It may not happen until May. But I also, you know, we don't know exactly when Congress is going to come back together. And this is a point that a few people have made recently. David Lennart in a New York Times column, is that Democrats, to the extent they're more interested in this than Republicans, have leverage now because there are going to be some must pass bills dealing with the economic fallout of the coronavirus, as well as various issues related to medical care. And so this is something that could be folded into that legislation. And, and I think if it doesn't happen, then we don't know what legislation is going to look like over the next few months. And by then it could be too late. So I think that it's going to have to. If there's going to be federal legislation, it's going to have to happen very soon. Right.

And, you know, so if you were just given assessment, I mean, you've written about this a lot and your new book, Election Meltdown, goes into this. How equipped are our democratic institutions to deal with the national crisis, whether it's this pandemic or just any national crisis? I mean, where are the weak points and, you know, our election system is highly decentralized. Does that make it harder to react to this crisis, given how decentralized, you know, local election administrators, states control election laws. Congress determines some election laws for federal elections. Does that put us at a disadvantage here?

Well, you know, to the extent that there is not congressional action, to the extent that we're relying on state and local governments, that we're going to see a lot of variation, I think that's problematic because we don't want people to have a much more difficult time participating in an election because of where they happen to live. Under Article 1, Section 4 of the Constitution, under what's called the elections clause, Congress has the power to demand some uniformity in the manner in which congressional elections take place. So to the extent we're worried about local variation, congressional legislation can deal with that problem. To the extent we don't get congressional legislation, then yes, I think there is reason to be concerned. There are about a third of states that require you to offer an excuse before you can get absentee ballots, for example. And in those states, I think there's going to be a lot of variation as to whether or not someone can apply to vote absentee, you know, in advance out of fear that they might not be able to get to the polls on election day. So I favor more uniformity. At the very least, I favor states directing localities as to how they should be conducting their determinations as to who is allowed to vote by mail.

And we're already seeing some states with these restrictive excuse requirements for absentee ballots moving, if not towards a no excuse system, at least for some sort of emergency change in the excuse requirements to say, okay, well, we have these excuses. Obviously we didn't expect pandemic to be one of them, but we will change it to include the current crisis as a, as an excuse to get an absentee ballot.

Well, I think we're talking about again, this variation. So recently in Kentucky, the Kentucky legislature did not come up with a way of relieving the excuse requirement to vote for absentee ballots, but they did pass a voter identification law that is going to require people who are want to be able to vote to be able to get identifications which would require them to go to the motor vehicles department in some cases, which may or may not be open and may or may not be safe. So, you know, I'm concerned that there are places in the country where this will just be another excuse for voter suppression. And that is very troubling, especially in a time of a world crisis. Like we're in right now.

Right.

It really does highlight the divide between the states that are trying to make voter access better. You know, Connecticut, Massachusetts, you know, New York. Those are all some states that are trying to relax these absentee requirements. And as you mentioned, Kentucky is a really egregious case. I know another law professor, Joshua Douglas, who's been on this podcast before, had an op ed, just absolutely furious. And I've never even seen him so angry. And he was just more livid than I've ever seen him before about the action of the Kentucky legislature, and rightfully so. So, yeah, it's very, very worrisome. So in terms of more specifics about what you're looking for, what would be in your ideal crisis response bill from Congress? So as far as Congress can go, what are you looking for in terms of specifics?

Well, I think that the efforts should, should circle around absentee balloting and funding is the number one thing so that states have the ability to be able to ramp this up on a, on a scale that will be appropriate for November. I would like to see Congress require that all states offer in November only, as this would not be a permanent change. No excuse. Absentee balloting in congressional elections. And the details of how that should work. There's a bill by Senators Wyden and Klobuchar, some of which is good, some of which have some issues with. But you know, the, the general idea would be Congress requires everyone, every state, to allow people to vote by mail if that's their preference, and the Congress will pay for it. I think we need to have protections for voters in that bill so that absentee ballots are not rejected, for example, for lack of signatures, without giving a voter a chance to challenge that and prove her identity. I also think we need to have certain protections in there to ensure that the election is conducted with integrity. We know that voter fraud and election crimes are very rare in the United States. When they do happen, they tend to happen with absentee ballots. And so I think we need to take, take steps to ensure that absentee balloting is done in a way that does not create either the reality or the appearance that absentee ballots are somehow being tampered with in the actual casting of votes in November.

Right. And so would you want to see. I mean, I think certainly one of the, you know, as you mentioned, there, there are some states that are 100% vote by mail, but they also have polling locations open, you know, vote centers or drop off ballot places. In other words, how do we ensure that People can still go into the polls on election Day. Are there things that we should be thinking about in terms of a congressional package? Is there something Congress can do to ensure that election locations are sanitary? Or is that something that really has to be a state level decision?

So just to be clear, I'm not calling for Congress to pass legislation requiring states to use all vote by mail, which is used in some states. I think that would be problematic. It's also for some people who don't have a regular mailing address or are not easily reached, vote by mail is not a good solution for them. But I do think it should be an option. I think many states, even if there were, this mandate, would continue to have in person voting. And it's going to be potentially cost more to run that system because there's going to be maybe closed polling places, maybe consolidation of polling places, which maybe suggests there may have to be more early voting to assure that there's adequate way of spacing people out in voting so they, you know, are not packed in lines. If that is still a problem in November, I don't know that any of that needs to be part of the congressional legislation, but it certainly needs to be at the top of one of the lists of things that election administrators are thinking about as they are engaged in reworking their plans for November.

Rick, I want to jump in here quickly and ask a further question about having lots of absentee ballots. If we run this forward, and let's hope that either through state action or federal action, we do have much more access to absentee balloting, or even if there's not that many change in the law, it's certainly reasonable to expect we just will have many more absentee ballots cast nationwide. You know, how will that affect the counting of the votes? And what I mean specifically is that you've expressed in your book and in your excellent Slate podcast series, a worry that having votes be counted over an extended period of time may permit this president or the Republican Party to sort of say that voting, vote counting should just be stopped at some point and frozen and accept the results there. A, are you worried about that? And B, how do you protect against that?

Well, you know, in Election Meltdown, my new book, I was quite worried about this question of people seizing on the delay in counting of ballots after election night and trying to declare victory early. The more you have absentee ballots, the more it's going to be likely that there will be delays in the election. And if the election is close, it might be a few days or maybe A little, little longer before we'd be able to call an election, call a state for a particular candidate. But maybe, ironically, I think that in some ways the extent of this crisis is going to make the public and the media more cognizant of the problems of election administration. That is, if we have a massive flood of absentee ballots because of the virus, and it's explained that these ballots take a lot longer to count, I think people will be more patient than they otherwise might be, given the fact that we're dealing with these emergencies situations.

And is that something that you think that journalists need to be more on top of in terms of really priming the public to understand vote counting might take longer? I know, you know, a lot of people have raised concerns that, you know, what, what happens if Arizona is the Pivot State in 2020? And obviously it takes much longer to count all the ballots there. I mean, is that something that journalists have a civic responsibility to prime readers to expect a longer votal.

Sure. And I expect we're going to get a lot of coverage of this. As, you know, if we get close to the election and what we see is that the, that we, we are going to have this flood of absentee balloting because of the fear of people going to polling places, then I think it's quite likely that we're going to see stories by the media about delays in elections, because from what we know, especially in states that don't handle a lot of absentee ballots normally, is that it's going to take a really long time for this to happen. Right.

And can you dig in a bit more about why, as far as Congress is concerned, the funding mechanism is so important that allocating ample money from Congress is so critical because, you know, transitioning to these things cost money.

Right. It's, it's a lot of money. You know, one estimate, I think, from the Brennan center talked about an extra $2 billion. I mean, it's maybe not a lot of money when we're talking about the size of a Corona virus aid generally, but it's a lot of money for election administrators, and it's a big burden on states, especially as states are going to see their tax revenues fall as business has been temporarily suspended in a lot of places. And so, yeah, money really matters. Very, very important that there be adequate resources to make this happen.

And another big concern here is signature gathering and other parts of elections that we don't think a lot about. But for example, there are ballot initiatives that are in the process. I mean, I'm Thinking of ranked choice voting in Massachusetts, they gathered I think 120 signatures and that if they want to get it on the ballot, they have to collect another 13,000 signatures. Obviously that's incredibly difficult to do now if you can't go door to door. And a lot of that is state by state. It's in the state constitution. But is that something that. How do we think about these requirements that we often take for granted in a state of emergency? Are these just election laws that will have to state by state patchwork of just trying to figure out how to maintain some semblance of normalcy in terms of the pre election requirements, you know, because we're talking about the ballot of, of, you know, on election day. But there's a lot of stuff that

goes on before that. Well, I certainly think that the initiative process is going to take a huge hit this time around. I went into my supermarket the other day and there was a signature gatherer trying to collect signatures and people, I think quite reasonably did not want to approach the table and not want to be dealing with this right now. There are initiatives on the ballot. I'm sorry, I say there are initiatives in circulation on issues such as redistricting reform. You know, there's lots of election reform things that are on the ballot as well as other important public policy measures. I don't think there's really anything to do about that. We certainly wouldn't want to pass a law that says, well, we're just going to get rid of the signature requirements or lower the signature requirements to put more things on the ballot. I think that would be problematic, especially because we might worry that turnout might be lower in this election. And so we wouldn't want things. We wouldn't want to put more things on the ballot necessarily. And so I think this is going to be one of the casualties of this virus. Is that likely? We will see the number of initiatives going way down and the ability to put things on the ballot may end up having to be passed to the next election when a state allows those things to be put on the ballot.

And a related question that I had, Rick, is about something people aren't talking very much about, which is not just the presidential election and congressional and senate elections, which are coming up in November, which obviously we need to protect against. But fingers crossed, we may be in a better situation with regard to coronavirus or at least have more certainty. But there are elections coming up for lower offices, for judges, for local officials, for town officials, county, state level offices that are not even primaries. They're literally just offices. I'm looking right now, Rick, as we speak at what's gonna be on the ballot in Wisconsin on April 7th. And there are judicial elections on the ballot at the county level, at the state supreme court level. Right. There are circuit court judges, there's a primary and there's other types of election. There's a special election for an open congressional seat coming up soon after. So A, what happens to those immediate elections, Rick, that are really, we know, gonna be directly affected and B, obviously it will be very hard for legislatures and state officials to act and totally change the process. So what do you expect to see out of litigation and sort of making sure that rights of individual voters or parties are enforced here?

Well, so you know, I think you're right to point out that although we focus on the presidential election and control of Congress, there's lots of other things on the ballot. In fact, there was a, an incumbent Democrat, one of the last anti abortion Democrats in from Illinois, who was primaried out in the recent primary in Illinois, which was conducted under these less than perfect conditions. It's going to be really hard for campaigns to take place without the door to door knocking, especially in local elections. How do you get to know your local person? It's going to be a challenge. The party's conventions may be affected over the summer. You know, I think it's too early to know exactly what that means, you know, so it is just a, you know, a lot of uncertainty, a lot of uncertainty for candidates. And you're right as well to focus on voters. You know, what is the question that you can do, what is the step that you can do to ensure that you're going to be an educated voter, especially in these lower ballot races? Very hard to get educated. Now presumably we'll still have the mail, we'll still have TV and radio. So there still are ways to, for voters to get information, but it's certainly not going to be as easy to get in voters faces and give them the information that they may need.

So just to follow up on that, Rick, I mean what do you think is sort of the worst outcome? I mean you've thought about possible worst case scenarios for elections and as you mentioned before we started speaking, in some ways this is worse than even nightmare scenarios you envisioned. So on the one hand it seems like we have an option of what you said is running an election in what you, I think generously called less than ideal conditions, which may be described as really awful or even undemocratic conditions. And the second option though, is postponing or somehow canceling an election, which, you know, in Wisconsin, to go back to that example, there are offices that are expiring in April that we literally won't have a way of replacing them unless we have an election. So I don't know. I don't have a great way of dealing with that dilemma. But since you fought it through so deeply, how do you sort of see the, the best of the two really bad options?

Well, so if we're talking about the presidential election, the 20th Amendment says that the president's term ends whether or not there's a successful election on January 20, 2021. And so then there would be an order of succession if we couldn't hold an election. But you're right, that doesn't solve the issues for Congress. The Senate would remain. The Senate is a kind of a continuing body, so there'd at least be 66 or 67 senators. Yeah, but I mean, these are terrible scenarios. You can imagine other kinds of problems. For example, the election goes on, but health officials, either on the federal or state level, declare that the polls need to be closed, you know, so people can't go out and vote. And that is, you know, very worrisome. Would we only go with absentee ballots? And then, of course, and this is something, Jason, that I'm sure you've thought a lot about, given your work on the Electoral College, there's a possibility that you could have state legislatures say something like, we don't think the election can be conducted where enough people can vote for president, so we're going to take back the power that we have under Article 2 of the Constitution and we're going to appoint electors ourselves. And that would be, you know, I mean, I think there would be rioting in the streets if we had something like that happen where the Pennsylvania or Michigan or North Carolina legislature says, well, we're not letting the voters vote for president, but it's at least because of the flaws of our United States Constitution, it's at least within the realm of possibility of something that could happen. And I think we don't really have a lot of good tools to deal with that. We're not going to be amending the Constitution before the November election.

So, Rick, one thing that's been floating around a lot, and I know the answer is pretty clear, but I think it'd be worthwhile for our listeners to know, can the president postpone federal elections in November?

Well, I think the answer to that is no, but and the no comes in that Congress has Given the power to set the time for the presidential election, Congress has done so in a statute that I think dates back to 1845. And so it would take an act of Congress to change an election date. And of course, changing election date wouldn't change the part of the 20th Amendment that says President Trump is out of office on January 20th if there's no election. But the president does have a lot of powers, power to declare martial law, power to engage in health related activities that could directly impact the vote, such as by ordering polling places closed or people to remain in their homes. And so that could directly affect who's allowed to vote, even if he can't change the election date.

And so what about states? Is it, I mean, for, you know, for federal elections, that's one thing, but, you know, do. And then maybe again, it's a patchwork of laws. But, you know, can, I don't know, a state that has a governor election in 2020 postpone it unilaterally or for state legislature? How do the states deal with this issue?

Well, to begin with, this is a question of state law and you'd have to look at the state constitution and what its provisions are. Presumably, if, if the state doesn't have an election, there's going to be a procedure for someone to temporarily take that office. But, you know, I think all of these kind of potential nightmare scenarios under my underline, the reason why we need to greatly expand absentee balloting. It's not going to be perfect, but at least it will give people a way to vote if they're unable or unwilling to show up in person on election day and be able to vote.

Okay, so we've talked about federal elections and we've talked about state elections. But one thing that I've been wondering, and this is sort of deep cuts election law, but I think many listeners will be interested is what about state administered elections that affect the composition of national bodies in other states? So, you know, as you mentioned, this November, Congress has set the time not only to pick presidential electors, but also to vote for the senators who are up for reelection and the entire Congress, which, as you mentioned, their term also expires next January and they need to be reelected en masse this fall. Well, what if certain states decide to administer congressional elections that are so poorly done as to really question the, you know, trustworthiness of every congressional seat in that state? You know, if Kentucky, which we were talking about earlier, and we don't mean to harp on them, but if they decided to basically cancel in person, Voting in urban areas, which are heavily Democratic and permit it in rural areas. And that calls into question the entire congressional delegation from that state. Does anyone have any remedy against that? Or can anyone do anything there? Or will we just sort of have to accept the results that Kentucky sends to the next Congress?

Well, I think there are two answers to that question. One possibility is going to state or federal court. And arguing that the election has to be redone because of a fundamental unfairness was the situation where we had absentee ballot tampering in the North Carolina 9th congressional district race in 2018. And there it didn't take a court, but it was an administrative body of the North Carolina State Board of Elections that unanimously determined that they needed to redo the election. So, you know, one possibility is a court action. The other is Congress itself. Congress has the ability to judge the qualifications of each of its members, and potentially Congress itself could find a remedy for this in the event that there were these kinds of problems. So I, you know, I think there are ways to think about this in terms of how we could deal with these problems. But again, to come back to my main point, you really need to have absentee balloting in place so that as many voters as possible will be able to vote in this coming November, regardless of what the conditions are on the ground.

So I want to conclude this conversation on a little bit more of an optimistic note. You know, I know that you've said that any act of Congress could potentially only apply to this upcoming election. So it's not permanent. I know some states are making exemptions for absentees or for excuses for the absentee ballots, you know, just based on this pandemic, so, you know, might not last beyond it. But is there an opportunity to learn from this and the fragility of our democracy and, you know, through the actions we take, whether it's that, you know, maybe the law doesn't extend any changes, don't extend past 2020, but if we do really push the absentee ballots, and, you know, we see an unprecedented number of Americans using a vote by mail option, might that change the understanding of American democracy and our election laws and maybe hold some sort of possibility to pushing us to a more accessible voting system, maybe that's a little too optimistic right now. But it's something that I think about a lot, and I think there's an opportunity for rethinking our democracy.

So, you know, I'm not as optimistic as you that, you know, even if congressional legislation passed and we had this one time, no excuse vote by mail that it would mark a fundamental change. What I am a little bit more optimistic about is that the coronavirus issue will finally convince the American public that we need to have a plan B, that we need to have something in place to assure that our elections can take forward even under conditions of an emergency. In my book, election Meltdown, I talk about natural disaster or a terrorist attack or a cyber attack on our elections. We need to be prepared for everything. And if anything good can come out of this terrible situation that we're in, it's that we need to have contingencies and recognize that our democracy is an essential part of our society and that when we're dealing with emergencies, we can't let our democracy go to the wayside. And we need to have rules and procedures in place to assure as much as possible that the people are the ultimate ones who determine who will be our leaders in times of crisis and otherwise.

Well, I think that's a good note to end it on. Rick, thanks so much for joining us. This has been a really wonderful and helpful conversation in these difficult times.

Well, it's been great to talk to you. I wish you were under a little bit more pleasant circumstances.

Thanks. R.

Sam.