Podcast: What Could Go Wrong in the US Election? Rick Hasen on Nightmare Scenarios and Challenges

TRANSCRIPT: What Could Go Wrong in the US Election? Rick Hasen on Nightmare Scenarios and Challenges

Rick Hasen:

I think if it came down to Pennsylvania and we had actually have to look under the hood and see how the election's actually being run, I don't think we'd be too happy with what we see.

Ian Bremmer:

Hello and welcome to the GZERO World Podcast. Here you'll find extended versions of the interviews from my show on public television. I'm Ian Bremmer, and today we're talking about the US presidential election. I'm sorry, but we have to. Specifically, voting and all the perils potentially lurking at the polls. Record numbers of mail-in ballots that must be counted, hundreds of lawyers waiting in the wings to litigate in several swing states, and plenty of foreign interference and voter suppression. No wonder half of all registered voters don't think we'll know the results within the first couple of days. My guest literally wrote the book on election meltdowns. I'm talking to leading legal expert, Rick Hasen. Let's get to it.

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Ian Bremmer:

And Professor Rick Hasen, who's at the University of California Irvine and the author of "Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy." A timely topic indeed, sir. Thank you so much for being on GZERO World.

Rick Hasen:

It's great to be with you.

Ian Bremmer:

Your book came out last February right around the disastrous Iowa caucuses that certainly were not a good foretelling of things to come, but before the pandemic hit, you cited a confluence of forces that could lead to a disaster on November 3rd, increased voter suppression efforts is one. What's the most damaging instance of that that you've seen so far?

Rick Hasen:

Well, the obvious thing that's happened since my book came out is the coronavirus hit and we're trying to run an election during a pandemic. And it's just been amazing to me, not a single thing, but a confluence of mostly Republican states that have passed laws that are making it harder to register and to vote during a pandemic, or that have failed to change laws and have been fighting tooth and nail in federal and state courts to prevent safe and fair voting during the pandemic.

Ian Bremmer:

Now, turnout, early turnout so far at least has been extraordinarily strong. Would you say that those efforts have largely failed, given how much interest there is, or they've succeeded and we're just not seeing it?

Rick Hasen:

Well, so when I write about voter suppression, I'm not necessarily talking about it affecting the outcome of elections. I think that's a really tough question to answer because, in fact, there's a backlash. We just saw a recent story in Politico about African American voters in Georgia who are coming out in droves because they know that state officials are doing things that are making it harder for them to register and vote. I'm more concerned in the book about efforts to suppress the vote, undermining the legitimacy of the election. The kind of language you hear from Donald Trump makes Republicans believe that Democrats are trying to steal the election and the responses to make it harder to vote convince Democrats that Republicans are trying to steal the election. So, both sides end up because of these efforts and making it harder to vote, end up seeing the other side is trying to cheat.

Ian Bremmer:

Is it your view that large numbers of Americans are going to feel that the election was stolen from their candidate?

Rick Hasen:

Well, I think a large part of this is going to depend on the margin of victory. What we know is that when there's a hard fought election these days, the losers tend to believe that the election was not done fairly. And especially if it's on the Trump side where there's a loss. The President has been repeatedly stating just about every day that the election is rigged. I'm sure that if it's... No matter what happens, if Trump loses, there's going to be a core of his supporters who are going to believe that it's stolen. But if it's very close and it ends up in the courts, that kind of protracted situation I think will lead many Americans to believe that it was an unfair election.

Ian Bremmer:

Now, you've also talked about foreign intervention clearly in the run-up to the 2016 elections. That was a significant issue when we were all aware of when the Obama administration did not respond to particularly effectively or very quickly. This time around, we haven't had as much news about that. A little bit on Russia and Iran in the last week, though frankly, not egregious activities if we see at least what we found publicly. And very interestingly in the last few days, President Putin himself seemingly helping the Biden cause by saying, "Hunter Biden's not really a big thing. We want to engage in arms control. If Biden comes in..." Has this played out to a lesser degree than you might have expected a few months ago?

Rick Hasen:

Oh, a couple of things. Number one, I think the goalposts have moved. We know from intelligence reports that were reported in the New York Times that the Russians have done what they did in 2016 in terms of breaking into state voter registration databases. Now, not necessarily doing anything to change any of the data on there, but that itself can undermine people's confidence in the election. We know that the Russians and others have been engaged in disinformation campaigns just like they were in 2016. I think the news is just so flooded with things happening every day that in a normal world, these things would be major news.

They would be on the front page of the New York Times for days, but yet with the coronavirus and everything else going on, it is something that is just seen as just another thing we have to deal with to get through an election during the pandemic. And in terms of Putin's latest comments, I think when you've lost Vladimir Putin, I think Putin is hearing the polls as well. And I take this as actually a hopeful sign because I think it means that one of my greatest fears, which I talk about in Election Meltdown, which would be a cyberattack emanating out of Russia on the power grid during an election in a swing state is somewhat less likely. That's a little bit of relief, but it's still a lot of interference in our election.

Ian Bremmer:

Certainly if Putin is a week in advance of the election trying to say that he would want to have good relations, constructive relations if Biden were president. I mean, a massive cyberattack by the Russians against the US power grid would tend to undermine that strategy.

Rick Hasen:

Yes. But there are, of course, other countries that also have designs on messing with the United States election, so I'm not completely relaxed about how election day is going to go. I'll be happy when we're through election day.

Ian Bremmer:

You talk also about administrative incompetence. We've never hosted an election before in the middle of this kind of health crisis. What do you do? You've seen some of this already in primary season. Where do you think people should be watching most carefully to see if that becomes a truly explosive set of problems?

Rick Hasen:

Well, the first thing we know is that no election is conducted perfectly, and that elections have all kinds of problems. We're going to have more problems because we're running an election during a pandemic. It's much more expensive. Congress only came up with about a tenth of the money that it takes to run elections efficiently in a pandemic, meaning that things are going to be done in a sloppy way. I'm especially concerned about Pennsylvania and to some extent Michigan and Wisconsin, three key midwestern states that were part of Trump's electoral college coalition, and states where they're getting a flood of absentee ballots where they don't have the experience counting that many absentee ballots, where the amount of litigation over these ballots is now on its second trip to the United States Supreme Court just out of Pennsylvania.

And so, I think if it came down to Pennsylvania, for example, and we had actually have to look under the hood and see how the election's actually being run, I don't think we'd be too happy with what we see. And so, I'm really hoping that something called the Election Administrator's Prayer, which is, "Lord let this election not be close." I really don't want it to be close in a place like Pennsylvania one way or the other. Trump or Biden winning a clear victory would be much better for the country in terms of the election's legitimacy than the hand-to-hand combat that we would see if the election went to overtime.

Ian Bremmer:

Is it a foregone conclusion in your mind that if the election is reasonably close, that it is aggressively contested on both sides?

Rick Hasen:

I think there's no question about that. I mean, think back to 20 years ago, Bush versus Gore. People felt that Gore was not aggressive enough, and here he was fighting for recounts and there were almost two dozen lawsuits. I mean, now we're in a social media era, we're much more polarized. Both sides see this as a existential election about the future of the United States. I think it would be litigated as much as possible. What we really need to see is a victory that's outside the margin of litigation, which means we don't come down to a very close vote in a swing state that's crucial for the electoral college or some kind of massive failure like a cyberattack or something else, a hurricane. Something else that makes it impossible for someone to be able to vote in one of these key states.

Ian Bremmer:

If it is contested, it is close, how much does a 6-3 conservative split in the Supreme Court actually matter?

Rick Hasen:

Not only would it have to be close, it'd have to be so close, like think Florida 2000 close, which was within a few thousand votes, later got whittled down to a little over 500 votes. Have to be that close and then there would have to be something worth fighting over and it would have to be crafted in such a way as to come up with a theory that would swing the outcome of the election depending on how the Supreme Court rules. I mean, I think if it gets to that and we get to the Supreme Court, we've seen the justices end up voting in ways that line up with their ideological and partisan preferences. I don't think that's because these justices are consciously trying to help their parties, but because the theories that are proposed to them or ones that appeal to that side. We'll see. But I think we're talking about a low probability event. Highly catastrophic, but low probability.

Ian Bremmer:

Rick, does it have to be that close or can it be not quite as close, but more uncertain? I'm asking that because... I mean, around 2000, you had reasonable certainty about the way the election was conducted and you had these hanging chad problems in Florida, specifically the way the ballots were, and were not punched. Where, I mean now you've got a pandemic. There are just one of many ways for significant numbers of ballots to be questioned or contested in a way that back in 2000 was not the case.

Rick Hasen:

There were so many things that went wrong in Florida. We attempted to focus on the hanging chads, but remember there were almost two dozen lawsuits. There were all different kinds of theories about the treatment of military ballots, about other things that could have been outcome determinative there too. Could someone come up with a theory that might try to exclude lots of votes? Yes, but it would have to be something within the realm of what's been legally argued before, I would think. And one of the reasons that Bush v. Gore was so controversial was that the conservative justices on the Supreme Court embraced a very liberal equal protection theory to justify the outcome, and the liberals on the court rejected that equal protection theory, both sides changing sides in that case. But judges, justices, they are part of this world. They are polarized like everyone else. And so, it really would be best if it did not come down to a court contest. If it does come down to a court contest, I don't think we can expect the court to be able to rise up the politics of the moment.

Ian Bremmer:

And to get away from the courts for a second. I mean, let's imagine it's not a very close election, but President Trump nonetheless says, "This was stolen. I actually won." Are there any significant scenarios you see where that gains momentum because of social media, because of Trump's hold on the Republican parties, by far the most popular and strong character that they have? How does that play out in your view?

Rick Hasen:

Well, to begin with, conceding the election or agreeing that you've lost has no legal significance. It only has political significance. It's not until the votes are certified weeks after the election and then the electors meet in each state, and then the electoral college votes are transmitted by the governors to the Congress, and the Congress counts the electoral college votes in early January. We have a whole elaborate procedure. There's nothing legally significant about presidents saying, "I concede, I've lost." But politically, I think you're right. It could be quite significant if the president says the election was rigged. Now, I think that if it's not close, what you're going to see are Republican leaders rejecting these arguments just like they rejected Trump's trial balloon to try to delay the election or his statements about not necessarily accepting a peaceful transition of power.

If it's not close, Republicans are going to want to cut their losses, I think. Whether that's Mitch McConnell or someone else, they're going to be in a much weakened position. If the polls are correct, they might be losing the Senate as well as the House. And remember, it's going to be the new Senate and House that count the electoral college votes. And so, I think the Republican leaders besides Trump would want to put the issue behind them. Certainly there will be a core of Trump supporters of his base who are going to believe the election is stolen. I think that's going to be true whether Trump concedes or not, and I don't expect that Trump is going to give the typical concession speech if he loses simply because he's not done anything that follows the norms of politics.

Ian Bremmer:

Look a little farther on. I mean, once we get through this massive messy thing, what's something that a future administration could do to help really reduce the dangers that an election seems delegitimized by so many American citizens?

Rick Hasen:

Well, there's a lot that could be done. I mean, I think long-term, I would like to see the United States join with every other advanced democracy around the world and have a system of national nonpartisan election administration with an electoral body that is insulated from day-to-day politics like the Federal Reserve. That's not happening anytime soon. It might require a constitutional amendment. I'd also like to see the right to vote guaranteed in the US Constitution, which might surprise you, it's. We only have our rights framed in terms of the negative. Don't discriminate on the basis of race or gender, things like that.

In the medium-term or the short to medium-term, you can imagine if Biden wins and Democrats take back control of both House of Congress, they could pass election reform bills that would provide certain standards that states would need to meet. In terms of early voting, in terms of the technology that they offer, in terms of uniform rules for voting by absentee, there's all kinds of things that could be done. The question is going to be what's going to be on the Democrat's agenda if Biden wins, and are they going to have to get rid of the filibuster in order to get meaningful electoral reform happening in say, the first year of a Biden administration?

Ian Bremmer:

When you look around the world, what democracy or democracies do you hold out as the countries that really do elections right and why?

Rick Hasen:

Well, the ones I've studied most closely are Canada and Australia. Both of them use a model of nonpartisan election administration. I should note that it's much easier to conduct elections in those countries when they conduct national elections. You're really only voting on one thing, which is party you want, so it's not so complicated. I think in Australia it's a three member board, and in Canada, a tsar. I don't care which particular model, but it's very efficient. The machinery's the same everywhere you go. There is very little controversy. In Australia, they also have compulsory voting, and so there's no fight, and-

Ian Bremmer:

They fine you, right? If you don't.

Rick Hasen:

Yeah. And the fines are not really enforced. But people comply with the law generally, so they get very high turnout. I wouldn't want that for the United States because I think there'd be too much resistance to that. If we can't get people to wear masks, if we tell them they have to vote, even if they could vote a blank ballot, they wouldn't like it. But compulsory voter registration. Back in 2012, I wrote a book called "The Voting Wars" where I proposed national voter ID with universal voter registration. And I like to say it's a proposal that united Democrats and Republicans, because they all hated it. Different aspects of it, but I do think we need a system that's much more rational and much more like the rest of the world. It's just hard because we have a really old constitution that predates parties and predates the modern administrative state, and it's hard to get things through when you've got this history of state and local election administration. They don't want to give up their rights to be able to run their own elections.

Ian Bremmer:

Rick, we know the country's very divided right now. The mass media and social media are very divided as well. Any guidelines for how you would like to see both media and social media covering this election maybe differently than they have in the past, given just how contested and controversial it is proving to be?

Rick Hasen:

I think two key points here. One, in terms of the media, it's very important that if the election is very close and it comes down to say, those midwestern states, which are going to count their ballots slow, that the message is too early to call. That we don't know who the winner is, and people should have patience, and this doesn't mean that anything nefarious is going on. It just means that it's going to take a while to process those absentee ballots. We're doing this in order to prevent fraud, not to facilitate fraud. And transparency is important from election administrators so that the media can accurately report what's going on, especially if there's disinformation.

And that goes to my recommendation for social media, which is that we need to make sure that those companies are removing disinformation about voting. That could be false information about, for example, where, when, and how to vote, especially during the pandemic. Maybe there are false rumors about a candidate being sick on election day or something else going on. And after election day, if we are in a close election period, if you do have Trump claiming that the election is massively infected with fraud and he's making those claims without any basis, then I think it's incumbent on social media companies to be providing accurate information and to direct viewers and listeners to correct sources of information, which are official local and state government bodies that are actually counting and the ballots and are announcing official results.

Ian Bremmer:

Rick Hasen, he wants you to vote. Thanks for being on the show, man.

Rick Hasen:

Thank you.

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The GZERO World Podcast is brought to you by our founding sponsor, First Republic. First Republic, a private bank and wealth management company, places clients needs first by providing responsive, relevant, and customized solutions. Visit firstrepublic.com to learn more. The GZERO World Podcast is also brought to you by Lennar, America's largest and most innovative home builder, and the number one destination for foreign residential real estate investment in the US. Learn more at www.lennargzero.com. That's L-E-N-N-A-R-G-Z-E-R-O.com.

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