Election Law Warfare

UCLA Law School Professor Richard Hasen,  a renowned expert on election law, guides us through an analysis of proposed election law reforms.   

Transcript

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Welcome to another episode of Inside Golden State Politics. I'm Bill Bosky, the former city editor and columnist for the Los Angeles Times, and with me is, our producer director, Nancy Bosky. And I'm Sherry. Be Jeff. Political analyst and self-styled, medium even coming to you from the Milan, Corina Winter Olympics. Yeah, I, I know you know that I'm not there, but listen, my absence is not only physical. I have never felt so alienated. From the games, from the spirit of the games and what they have long tried to stand for. We're not in 1984 anymore. This time, us Olympians were booed as they appeared at the opening ceremony. This time, the president of the United States dumped on his own country's athletes. There's a message in that. Or a question that needs to be faced, something that all of us Angelinas in particular will confront as we carene toward the 2020 Los Angeles games. Where will our country stand with the world when it's our turn to attempt to recreate that waning Olympic spirit? Over to you, bill. Well, Sherry, those are very good points. depressing, but good. Sometimes I think the Olympic spirit was a, creation of the sports writers. No, 84 was different. But that's another I'm not gonna go on like that. We're talking today in a time of confusion. The, the, primary election season is just beginning and, now it's already promises to be incredibly lively and incredibly confusing. President Trump has set the stage, Charging fraud even before ballots were cast. And that's just a little, foreshadowing of what's gonna happen. We're very fortunate to have as a guest, professor Richard Hasan of UCLA Law. Rick is America's great. Expert on election law. And I'll buy that, and internationally known he knows it and we're really fortunate that he's here. he's director of the Safeguarding Democracy Project at UCLA Law. And he's the author of several books on the subject of, elections and more than 100 articles on that subject as we start this primary season. Rick, tell me, What should we look out for? What are the trouble signs? What should we alert Media observers like Sherry and I have our eyes out for. Well, thanks for having me on. I think that right now there's a lot of uncertainty about what Donald Trump and the federal government might do to potentially interfere with. The November elections, I don't think we're gonna see much in the primary season. We just got through voting on Prop 50 and Virginia, New Jersey Just got through gubernatorial elections and although, Trump, DOJ said they were gonna send in observers, they sent a total of two people to Los Angeles. not, not the huge crowds of, you know, storm troopers that some people feared. but I do think we need to worry about the fall. The control of both houses of Congress, could be at stake, much more likely the house than the Senate. And, Donald Trump has said that he does not want to have a democratic house because. They'll have the subpoena power. They could impeach him, they could impeach and investigate his, cabinet members. There's a lot that is riding on this election. And so Donald Trump has started not just, continuing his longstanding claims against, fraud. claims that the election is gonna be stolen. this is not news, but what's news is the kind of actions that he's taking, including, last, month, having the offices of the Fulton County, Georgia. election, administration, agency, rated, and ballots and other materials seized by the federal government. And I worry that that is a potential test run for I agree. I think that's what it rehearsal and that county by the way is a, democratic urban. County in a state that, Trump, is hoping to win because of the rural Georgian voters. Right? I mean, well, right, but because we're talking about the midterms, where those contested close congressional races are, could really be in many different states. You know, it might be. That the election's gonna be a blowout and none of what we're talking about is gonna matter. But if it's very close, let's say control comes down to how the last few congressional races that have been called, that's gonna determine control. And those are races in California. Or in Arizona where they take a really long time to tabulate the ballots, in part because of the flood of mail-in balloting and the number of people that are here. I worry about the kinds of things that could be done in those, electoral jurisdictions where the counting is going on. Once ballots are removed from the chain of custody, then we can no longer be assured that we're gonna have a free and fair count. And so that is at the top of my list more than ice agents at the polls and more than some of the other things that people are worried about. I worry about stuff on the backend. After the election's been conducted, but before the winners have been declared? Well, you know the speaker, speaker Johnson is already setting that up, Rick by saying, you know, there were three Republican candidates in California who were well ahead on election day, but every time a new tranche of ballots came in, he said that margins shrunk to the point where finally. The Republicans lost. Well, to me, he doesn't really understand how California does its elections and why it takes so long to come to the total. So I think you're absolutely right about that. I, I, I worry completely that there're almost hoping. It takes forever in this huge state with 53 counties and a heavy mail, mail-in vote, that tends to be democratic. Looks like there's been some monkey business going on. What do you think? Well, first of all, I don't think Mike Johnson is as, dumb as, that comment was. well we can argue that later. I think he recognizes that, these kinds of fraudulent, conspiracy theories sell with the Trump base and he's playing to Trump and he's playing to that base. And so I really do worry it's a very dangerous period. Between the time that the votes are done being, submitted and the time that the winners are announced. So that's really the period where things are most worrisome. One of the things, that, a task force that the Safeguard Democracy Project put together said about the 2024 elections, it'll be true about 2026 as well, is that it's very important for the media, since you asked about the media early, it's very important for the media not to talk about Candidate Smith being. In the lead compared to Candidate Jones, the messaging should be, it's too early to call. Everyone's voted in the lead. Sounds like it's a basketball game, and there's still five minutes left. The game is over. We just haven't tallied up all of the baskets, and so messaging really matters in telling people. You know, a, a, a good count, a fair count is gonna take some time. And, just because things change, we, we know Democrats right now are more likely than Republicans to vote by mail. Right. Democrats are also more likely to vote later than Republicans. And so this kind of blue shift that we see where a Republican has more, ballots that have been, Counted up on election day. Shifting to the Democrat has more ballots when they're all counted. That's something that we expect to see. the shift. It doesn't always mean that it goes from a Republican winner to a democratic winner, but, the late arriving mail ballots, at least in a place like California, will tend to skew towards the Democrats. The what happens to, the, the, the ballot? This is the confusing, part, and you pointed it out. What happens to the ballot once it, submitted? I mean, you're saying that's what the media has to watch out for. It's sort a crucial period, speaking as someone who's, covered these elections as they unfold, with the, the votes coming in and the tremendous, pressure to. Get the story and all of that, and the complexities of counting votes. I always felt a little bit at sea I mean, how can you fool with the ballots, ballots cast, then, possession of it, their ballots counted, and where, where does it go into limbo or. Right. So these, right, so, so this is the chain of custody issue and these ballots all end up in the custody of the local election official in Los Angeles. That's Dean Logan's office, in Orange County. It's Bob Page. And I believe that in Bob Page, in Orange County. they have a camera that's actually trained on the room with the ballots. you know, so whatever we can do to assure transparency like this is, the ballots are never going to be out of the possession of election officials where they can be messed with. And, people ask me, you know, what can I do to try to assure we have free and fair elections? Our elections are very decentralized in this country. There are lots of opportunities for regular people to get involved by being a poll worker. By being an observer, by being involved as election administrators are, you know, detailing what the process is gonna be and what the, what the transparency rules are gonna be. So I do think that it shouldn't be a black hole. And one of the things that we also recommended in that 2024 report. Which is available on the Safeguarding Democracy Project website, safeguarding democracy. Democracy project.org is that election officials communicate with the media, let them know what to expect. Mm-hmm. Let them know, you know, we don't think we'll have this many ballots counted by this time. This is our, our expected schedule. And so I think the more that the media knows and is not scrambling to, tell a horse race story after the horse race is over, but. Before the winner's been declared, the better it's going to be. You know, can I, ask you to go back to your observation that we have this decentralized, system of elections and that brings to mind the debate to, for me anyway, the debate over the nationalization of elections. it was, I think, senate majority leader, Republican leader, John Thune, who has come around. To not supporting the nationalization of elections, which many Republicans, including of course the president are very firm in supporting and he observed that it's much harder to hack 50 and they really are 51, aren't there, but 50 systems than it's mu. It's much harder to hack 51 systems than it is to hack one. Is that. Logical Was that? Well, so the first, it's more like 10,000 different systems because we administer, we administer our elections on the county level, not on the state level. States set the general rules, but the counties are where, where the real work happens. So I wrote a book in 2012 called The Voting Wars, where I did call for nationalizing our elections to have national nonpartisan election administration. I looked at Canada, I looked at Australia, I looked at advanced democracies. That's what they do. You go into a polling place in Saskatchewan. It looks like a polling place in British Columbia. You know, it's all the same. The machinery's the same, the ballot forms the same. There's a lot to be said for that. But Donald Trump has convinced me that American democracy is too weak for us to adopt a national system because as we see with other nominally independent agencies that are part of the federal government, like the Federal Reserve, Trump is trying to exert his power over these agencies. And because of, that. Potential for there to be subversion from the top. I think the decentralization now has to be seen as a wick against authoritarianism rather than a way of making efficient elections. I don't think most Republicans before Trump made the nationalization comment, support nationalization of elections. In fact, when Democrats controlled the Congress. last when Biden was president, they passed a law, the For the People Act that was gonna impose a lot of national standards. And Mitch McConnell got up there and he said this, this is the, was you know, the Senate minority leader at the time, and he said elections should be left to the states and to his credit. Mitch McConnell is saying the same thing. Now, right after the house has passed the Save Act, which is a law if passed, that would require people to provide documentary proof of citizenship before they could register to vote. It passed out of the house on a near party line vote, but it's probably dead in the Senate because there are enough Republicans who don't support federalizing or nationalizing the rules for elections. Why did you, especially, change your mind on this subject? after Trump's election? What, what in particular, changed you? Well, I see that, what he's trying to do to the rest of the federal government, he's trying to fire and has fired various, independent commissioners of different bodies. So we have some, executive bodies, not just the Federal Reserve, but things like the Federal Trade Commission, the Federal Election Commission, where, the president does not have control over these, agencies, and yet he's trying to exert control. So there's something called the United States Election Assistance Commission. It was created after the 2000 disputed election in a law called the Help America Vote Act. And that commission, one of the things it does is it, it, Is administers a postcard that people can use to register to vote in federal elections. Every state has to accept this postcard. This is a federal law. It says you have to, and so what is on the postcard is something that the, this body made up of two Democrats and two Republicans is supposed to decide. Well, Trump put out an executive order last August where he said. this postcard should require documentary proof of citizenship before people can vote. And this law, not law, excuse me. This executive order, which was not a law, this executive order, this edict from the president was challenged. And we've had numerous courts say that the president has no power over these. Independent agencies, and yet he's still trying, he's appealing. This could go all the way to the Supreme Court. A supreme court that, has justices that believe in the unitary executive theory. The idea that you can't have executive power unless it is ultimately, answerable to the president. And so that is, you know, just a microcosm of what it could be. If we had, an election commission nominally independent, but part of the executive, part of the federal government executing the laws running elections, what would a, the next would be authoritarian try to do to manipulate that body? Well, could you talk a little bit about what. The current authoritarian might do. Do you think that, and then I have a question. Go ahead. Do you think Trump will, run for a third term if he can, we'll figure out a way to get around the law. He seems to, not be, not respect the laws. We have. Are you worried about the third term issue? I'm not worried about the third term issue for a few reasons. Number one, it's blatantly unconstitutional, and I think even the Supreme Court. Is very likely to say that if Trump tried to win, second, he's 82 now. so that means he would be, he'd be, he'd be, He's, oh, he's 80 now? Yeah. He'll be 82. He'll be 82, he'll be 82 at the end of his term, so he'll be 86 at the end of a third term. if he's gonna run, and he is gonna run against Barack Obama, who'd be able to sit for a third term too, then, I, you know, I, I don't know the Trump would win that race. I, so I just don't, I don't believe it. I think that it's put out there for two reasons. One is it makes liberals heads explode. So think about Steve Bannon. You remember Steve Bannon is the guy who famously said that the way to win. He said The media is the enemy and the way to win is to flood the zone with shit. I dunno if you remember this comment. And what happened is, he's the one who said Trump should run for a third term. He's the one who on his radio program recently said, we're gonna have ice at the polls. This is just meant to get liberals all hyped up. So I don't think that's what this is about. I think it's so Trump is not going to be a lame duck president even earlier than before the midterm elections. Rick, I still can't get my. Head around, whether requiring, let's say, mandated national voter id, mandated restructuring of election systems, whatever is constitutional. It doesn't seem to me that that's. Constitutional at all. so I don't agree with that. Why? So the Constitution says, this is an Article one, section four. Yeah. That, that states set the rules for the conduct of congressional elections, but Congress can override any of those rules so Congress could impose a national voter ID requirement, I think consistent with this powers under the elections clause. that's not Trump. Trump can't do it himself. Mm-hmm. Trump is not Congress. It has to happen through a law. but so that, so that is the source of the power. There's also power to enforce the 14th and 15th amendments. That's where the power, Congress has when it passed the Voting Rights Act. It says the states have to protect minority voters. That's, not just for congressional elections, that's for all elections. So Congress does have a lot of power. some people think it doesn't have the power to fully nationalize congressional elections. We, that, that's not been tested. But you know, right now, every, you know, we have, over 50 me, members of Congress in California and. they have to be elected from single member districts, right? We can't draw a multi dis, multi-member district with, with like three members of Congress in it. Why not? Because Congress beginning in 1842, passed a law that said. Everyone in Congress has to be elected from a single member district. So Congress does have the power, but that's not the power that's given to the president. In a couple of these lawsuits against the executive orders, courts have said the President has no role to play in the conduct of federal elections. And then who, how many times has that been a guardrail under this precedent? So I think the courts have actually done a pretty good job in preventing attempted election subversion. I don't think they're doing a great job on protecting voting rights voting. I agree. But they're doing a pretty good job in fighting against election subversions. Lemme give you another example. in the 2024, there was a close race for the State Supreme Court in North Carolina. The Democrat was ahead after all of the counting was done by 754 votes. The, losing candidate who was a Republican went to the, courts eventually at the State Supreme Court. Which was dominated by Republicans and he argued that some of the ballots should be thrown out and he wanted to change the rules retroactively for how people were allowed to vote. And the North Carolina Supreme Court was gonna let him do that. And the Democratic, candidate, the incumbent, went to federal court. She was appearing before a very conservative Federalist Society judge. And he said, I'm siding with the Democrat. This, cannot stand because you can't change the rules of the election after they happen. That violates due process. You can't treat similarly situated voters differently that violates equal protection. So I do think there's a lot of consensus. Even among the most conservative judges on the court, that we have to have free and fair elections. And so I do think I see three bulwarks against Trump trying to mess with the midterms. Number one is the courts number two of the states that administer the elections and the counties and number three of the American people. If Trump is gonna try and send troops to mess with, you know, seize ballots, I think people are gonna be out in the street. I think it's what we know from Minnesota is that people are increasingly willing to stand up to displays of authoritarianism. It seems to be working this time around. Was that, was that a lesson of Minnesota? I think that, you know, all the talk about ice at the polls, I think and, and, and the pushback against the National Guard. You know, Trump has now withdrawn all of the National Guard troops from, that. He had federalized from, from all the places where they were. So I do think he has proven himself to be an ineffective authoritarian, and that's good news. Or it's a dress rehearsal and he doesn't like ha the optics of it and he'll come back using some other agency that won't scare people or who have been at least trained in dealing. With people. I think, I think you're hitting on a really important point, which is a lot of this is psychological warfare. You got it. Thank you. It's not about actually sending troops to the poll, and this is a long standing, tactic that the Republican party has used. I, I'm writing a book on American elections from the 1960s to the 2020s, and I was going back in the 1970s and 1980s looking at. So-called ballot security measures that Republicans were doing at polling places targeted at minority polling areas and their, in their internal papers. They are struggling with trying to get enough volunteers. In 2004, the Ohio Republican Party said they were gonna send 35,000 challengers to polling places in Ohio. Democrats fought it, it went all the way to the United States Supreme Court and Justice Stevens at three o'clock in the morning said, I'm not gonna stop this from happening, and no challengers ended up. Showing up. It was a bluff, but it probably deterred some people from voting because they hear it's gonna be a hassle. There's gonna be this happening that happening. And, you know, midterm elections doesn't get the same kind of oomph in the, in the public eye as a presidential elections already hard to get people to turn out to vote. This won't be that case. Well, this'll be probably very uneven. You know, those low information voters who supported Trump, they're the ones that are least likely to vote, and they're the ones that are most likely to be negatively impacted by new laws that states might put in place requiring identification or register, or, to register or to vote. Talk about those new laws. There seems to be, an effort on the Republican side to, to suppress the vote with. Laws, with the threat of, ice people at the polling places, all the, you know, fear tactics and downright suppression of the vote by requiring rather complex, presentation you're gonna have to carry around your birth certificate, your. You know, if you don't have a driver's license, that's too bad. If your spouse didn't change your name on, the marriage date, that you'll be in trouble. All these things have a one goal in mine, and that's to, suppress the vote, don't you think? Well, I don't wanna impugn all the motives of all the people who actually believe that fraud is a major problem, even though it's not. What I can say is the laws that require documentary proof of citizenship in order to register to vote, these are not voter ID laws. This is not you show at the polling place, but to be registered. We know that these laws, unlike. The voter ID laws that say, show your driver's license at the polling place, the documentary proof of citizenship laws, like what's in the save act that passed outta the house. These are disenfranchising. So in Kansas, they adopted a rule like this and there was a lawsuit over it. And when the lawsuit was brought, there was. there were 30,000 otherwise eligible voters who were prevented from voting by prevented from registering to vote by this law. The case went to trial in front of a Republican appointed federal judge where, the Secretary of State there, his name was Chris Kovac. He's, been voter fraud. a screamer for a long time. He said he was gonna prove that non-citizen voting was, was rampant. He said what he showed in his evidence was the tip of the iceberg and the federal district court judge In reviewing the evidence, the end of the case said there is no iceberg. There's only an icicle made up mostly of administrative error, and so we know these laws can be disenfranchising. We know Arizona has adopted these laws, so now if you don't have documentary proof of citizenship, you're still gonna be allowed to vote in federal elections, at least for now, but you're not gonna be allowed to vote in state elections. I think more states may pass these laws, but I should point out we're in the election season already. Local election administrators, they might be Democrat or Republican. They don't want changes in the rules close to the election. It's just very hard to, elections are very hard to conduct. People who work on them are, are overworked and underpaid. It's, we're getting too close to the election to actually start changing the rules for 2026. Mm-hmm. That's, can I ask you one sort of, I guess wrap up question? Where are we with regard to the rule of law in this country? the rule of law as our democracy is under great stress and we, every day we see, you know, things like targeting of political enemies, trumping up charges to try to, go after people for expressing their first amendment rights, lack of due process. People being seized on the streets. people are American citizens being seized on the streets without being given a chance to prove their citizenship, people being held in, very inhumane conditions. So there are a lot of things that trouble me about how the country is, is being run today, but I do. One of the things that we're seeing is, is extensive pushback, especially among the federal judiciary. So, you know, you're, you're seeing that, just today, uh, as we're taping a, bush appointed federal district judge, judge Leon. In Washington DC preliminarily, enjoined, secretary of Defense, Pete Hegseth from, trying to strip Senator Mark Kelly of his, pension Because of his speech, we're seeing judges standing up and calling out what the government is doing. Our democracy's under stress, but it's not going down without a fight. How do you think the citizens you talked. A bit about, it's on the citizen's shoulders too. I mean, you just can't stay back and watch tv. What can people do? People can work at polling places, people can be going to those boring meetings when they're deciding what the rules are gonna be for observing, how the elections are conducted. people should be, of course, they should be voting, they should be paying attention to what's going on around them. And because we live in a decentralized, election system. There are many opportunities no matter where you live. As I said, you know, California's not a battleground state in presidential elections, but control of the house may come down to a few districts here in California. And so that may be ground zero. We should just be prepared, and I think ultimately we need to have the backs of our election administrators to make sure they know. We're with them and we're expecting them to, to conduct free and fair elections, and we're gonna push back against any attempted interference. But I should say, and this goes back to Sherry's earlier point, the idea that we have to protect our elections from the federal government, just shows how far we've come from, the democracy that, we used to have. And one last question. How long will it take to make. Us quote normal again, how long will it take to repair the damage that's been done to the rule of law? Well, I, I, you know, a big debate is how much of this is Trump specific and how much of this is a new deterioration of the party. I, I was watching pieces of. Attorney General Pam Bondy's testimony before the House Judiciary Committee where she was parroting Trump, you know, she was hurling insults and it's just, it's so demeaned, the office of the Attorney General and the Department of Justice, which, you know, my students would fight to get a a, a position to be a US attorney. I mean, this was like. A really prestigious, important job. And so much of that in intellectual, capital is gone. so much of the integrity is gone as people have left, and it's gonna take a lot of rebuilding to get us back even to where we were before, 2016. Rick, thank you very much for, being our guest. it was, Great show. Very illuminating. Gets us all set months ahead. glad to be with you. Thanks Rick. My head is spinning. I've never had so much really important information thrown at me and, and such a short period of time. Keep it up. Thank you. Thank you. Bye-bye. Bye. Cheers.