SACHA PFEIFFER This is On the Media, I'm Sacha Pfeiffer sitting in for Brooke Gladstone. Since the announcement of the Maricopa County probe, there have been signs that there was more going on than a good faith attempt to review the election process. For one thing, a June report written by Republicans argued that Cyber Ninjas, the company contracted to undertake the count, had been procured using an uncompetitive process and was using unreliable methods. Then there's the content of the Cyber Ninja's report itself. A New York Times story Friday morning, quotes Adrian Fontes, the county recorder who oversaw the election, saying the questions investigators raised in the report reveal, quote, their purposeful ignorance and the fact that they, quote, don't understand the system. For example, the findings raise the potential danger of duplicate votes. But Fontes explains that the state has systems in place to reconcile votes in real time. And he says even raising that as an issue indicates a level of ignorance about how the county conducts elections. There are plenty more examples like that. Rick Hasen, a professor of law and political science at the University of California, Irvine, writes that this kind of obtuseness is a feature, not a bug. In a newly published paper, he lays out the three pathways to election subversion.
RICK HASEN Everybody understands voter suppression. When Georgia passes a law that says people waiting in long lines to vote are not allowed to be given water, you can relate to that. That's voter suppression. You're making it harder for someone to register and to vote. Election subversion is something different.
SACHA PFEIFFER One of the pathways, he says, is election official manipulation of election results.
RICK HASEN One of the things that we know that's happened since the 2012 election is that a number of election officials who withstood the pressure to mess with the vote totals, they're now leaving. They face death threats, they face threats of violence, they've faced intimidation. And in many places, they're being replaced by Trumpist loyalists. People who say that they believe or actually believe that the 2020 election was stolen from Trump. Those people are going to be in charge in some places of counting the votes, and in setting up the rules for how votes are counted. It's a low rent way of stealing an election. It doesn't happen very much in the United States because we have lots of checks and balances in place, but there was an election about a decade ago in a small Southern California city called Cudahy, where absentee ballots for the local election were sent to city hall for counting. The ballots were steamed open. They threw away the ballots of the votes for challengers and they kept the ballots and counted the ballots of those who are incumbents. I mean, that's what I'm talking about, something as crass as that, something I did not expect to see in the United States. And it requires potentially changing rules so that there isn't transparency in the ability to recount votes, and the ability to watch the process and control the chain of custody there.
SACHA PFEIFFER And as you mentioned, there are many election officials who are just-- they're done. They're leaving. They don't want to go through this again. That poses an opportunity for people to appoint new election officials who aren't as scrupulous. People without scruples, who will do the bidding of those who want a certain candidate to win.
RICK HASEN Right. I think there's a double whammy that comes when election officials leave. Number one, as you mentioned, the people that come in might lack integrity, but the other problem is the people that come in might lack experience and competence. And that raises the potential that people could take the mistakes that are made by new election officials, even well-meaning election officials, falsely claim that there's fraud or irregularities and use that as an excuse to try to overturn an election.
SACHA PFEIFFER Another way that you say an election can be subverted is violence or intimidation interfering with election processes. It seems pretty easy to understand, but go ahead and explain to us or give us some examples of what that might be.
DAN HIRSCHHORN Well, we know that when Arizona officials in 2020 were counting ballots, there was literally a mob outside.
[CLIP OF MOB CHANTING "COUNT THE VOTES"]
RICK HASEN Wanting to get in. We saw this in Detroit. There was just some very good reporting by CNN collecting some audio of voicemails with death threats to election officials.
THREATENING VOICEMAIL 234 years ago, the founding Caucasian Fathers of America gave us the Second Amendment. Time's running out, Richard. We're coming after you. And every m*** that stole this election with our Second Amendment. You will be served lead. [END CLIP]
RICK HASEN And, of course, we could have violence that prevents a peaceful transfer of power that prevents someone from taking office. Something like what we saw on January 6th.
INSURRECTIONIST Where are you Nancy? We're looking for you. [END CLIP]
RICK HASEN When those who are counting votes were targeted for violence.
SACHA PFEIFFER I'd like you to spend the most time on the final way you think an election can be subverted, because you think this is the most dangerous and the most likely way, and that's usurpation of voter choice for president. What makes it particularly chilling, as you said, it sort of has the aura of respectability and expertise. So explain what usurpation of voter choice for president is.
RICK HASEN So this is a really complicated point, so I'll simplify it just a little bit. The Constitution says the state legislatures get to set the rules for choosing presidential electors in each state and each state sends their presidential electors to Congress to be counted, and there are rules for how that's supposed to take place. What we saw in 2020 and what could happen in the future is that state legislatures, which are given the power to set the rules for presidential elections, could be pressured or could decide to ignore the votes of the people through technical legal arguments about their power to do so. And despite the actual results of the election, they could purport to send in a different slate of presidential electors. So say we're talking about 2024, Biden wins the state of Arizona if you counted the votes fairly. But the Arizona legislature decides, you know what, even though we held that election, we think there were irregularities, so we're going to send in a different slate of electors. And then if Republicans control the House of Representatives, there's a challenge which electoral college votes should count. The Republicans decide to count the votes sent in by the state legislature, relying on technical legal arguments, which I think are unsound technical legal arguments, but relying on those arguments and claiming that they have the right to accept those. That would be a way it would be a kind of respectable, bloodless coup. It would be a way of turning the election loser into the election winner. And rather than relying on kind of outlandish claims of fraud like Trump did in 2020: ballot box stuffing or laser's changing votes. And, you know, it's really easy to counter that by saying there is no evidence of laser's affecting election results, but when the argument is under the independent state legislature doctrine, if you correctly understand Article one of the Constitution Section four and you understand Article two as well as three USC Section two of the electoral Count act, you know, it's sounds like this person must know what they're talking about. When in fact, just a bloodless version of the same thing, trying to use false arguments to overturn an election.
SACHA PFEIFFER You've said in your paper that the Supreme Court has left a gap open for state legislatures in a way that could be concerning.
RICK HASEN So, the best way to understand this is to look at an example from 2020. In the 2020 election, which we held under very difficult circumstances in the middle of a pandemic, there were lots of lawsuits related to the election. Some related to changes that were made because of the pandemic that some people thought were illegal and some related to failures to make changes which rendered elections unconstitutional. So one of the cases that came up was a case in Pennsylvania where voting rights groups argued because of the pandemic and because of problems with how the US Postal Service was operating in the middle of the pandemic, ballots were likely to be late in arriving to election centers to be counted. And so there was a lawsuit brought and the state Supreme Court ruled that under the state constitution. The number of days for receiving these ballots to be counted in the presidential election had to be extended by three days. So rather than the ballots arriving on Election Day. By midnight of that day, they could arrive within three days of the election. And that was a state supreme court relying on the state constitution to extend voting time. Well, Republicans filed suit afterwards against that determination by the state Supreme Court. And the argument was by extending the deadline by three days, the state Supreme Court has usurped the power of the state legislature to set the rules for conducting a presidential election and conduct a congressional election, which the Constitution gives to the state legislature. Even a state supreme court relying on a state constitution doesn't have the power to do this. There were 10000 such ballots that came in and those in that three day period. And along the way, as litigation went to the Supreme Court, 4 justices on the Supreme Court expressed at least some sympathy with the idea that a state Supreme Court relying on a state constitution cannot change rules from any deviation set by a legislature in the statute. That is the independent state legislature doctrine. And Justice Alito, who is the circuit justice of the Supreme Court justice in charge of this geographic area in Pennsylvania, ordered that those ballots be kept separate, those ten thousand ballots. Fortunately, the margin in Pennsylvania between Biden and Trump was eighty thousand votes. So those 10000 votes, whether they were concerned, that was not going to make a difference in the outcome of the election. But you could easily see that if it had made a difference, if it had been determinative, there were at least four and I count potentially six justices on the court who would have been willing to accept this very muscular reading of the independent state legislature doctrine that the legislature can act independent of its own state Supreme Court and its own constitution in setting its election rules.
SACHA PFEIFFER What you just said, I think, is a good example of why this is actually challenging for the media to cover. It's quite complicated. What is the best way to bring this to the public attention in a way that makes it understandable?
RICK HASEN Well, I've gotten a story about that, about the media angle, which is that I gave an interview to Jane Mayer of The New Yorker that ran about a month ago in a story called The Big Money Behind the Big Lie, in which I explained this doctrine to Jane. And she quoted me are saying that I was, quote, scared sh*tless. Right after I did that, I was put on CNN and the anchor making these arguments. The anchors said, 'come on, say it, say it. Professor...'.
CNN CORRESPONDENT This is cable so you can say it. How scared are you about elections going forward?
RICK HASEN [ON CNN] Well, I never expected to say I'd be scared sh*tless on CNN, but....[END CLIP]
RICK HASEN And then he called me Professor Potty Mouth. And so this got a tremendous amount of attention because academics are not usually on TV swearing.
RICK HASEN My paper is meant to sound the alarm. I kind of feel like I'm the climate scientist who says we're going to have terrible fires and flooding if the Earth's temperature rises a degree and a half, or like the epidemiologist a couple of years ago who said, you know, we're really not prepared for a pandemic. We're in that same level of potential catastrophic political meltdown. And all I can do is sound the alarm and hope that the media are going to listen and they're going to try and tell the story.
SACHA PFEIFFER Some of the challenges to election results have happened as a result of changes in accommodations made due to the pandemic. Dropbox voting, expanded absentee voting, longer deadlines for ballots to arrive. If those types of changes and accommodations end, do you still see a great risk or is it the pandemic in particular that opens the door to this kind of litigation?
RICK HASEN I don't think it's the pandemic in particular. One of the things that surprised me about the 2020 election and the claims of fraud that were made by Trump and his allies was that they didn't rely on even a kernel of truth about election fraud and election irregularities. I had worried that the election was going to be poorly conducted because of the pandemic and that there would be some major problem in Pennsylvania or elsewhere, and that this problem might make it genuinely difficult to know if there was an outcome determinative problem in a state. And that could then have been seized on as a basis for trying to overturn the election results, much like Bush versus Gore. Back in twenty twenty, when the margin of error in how the election was conducted in Florida in 2000 greatly exceeded the margin of victory. And it was outcome determinative. But what I learned about 2020 was you don't even need a kernel of truth if you're willing to shamelessly lie about the integrity of the election and you're able to get enough attention and that you're willing to get millions of voters to pay attention and to go along with the lie, then you've undermined voter confidence. You create the conditions where an election could be stolen. So, no, I don't think it depends on the pandemic going forward. This was just a dress rehearsal for what might happen in a future election.
SACHA PFEIFFER So how do you think that news consumers can watch for subversion in upcoming election cycles? Because, as you say, it's often quieter than voter suppression attempts. And then what can they do to try to stop it?
RICK HASEN I think the first thing to recognize is that because our elections are conducted in such a decentralized way where it's on the state and local level, the rules that might allow elections, subversion happen on the state and local level as well. And so people need to be vigilant. They need to be looking at these rules for how elections can be challenged. Case in point, Texas, Texas just passed a very restrictive voting law that's gotten a lot of attention. There was that whole walkout of Democrats. You may remember all of that, but the law ultimately passed when Democrats had to come back to Texas and the Texas legislature had its quorum again. But there was a provision in the original law, one that would have made it much easier to have state courts overturn the results of the elections. It changed the standard of proof. It changed the rules for what you would have to show in order to overturn an election result. That provision, after pressure from government groups and civic groups and others, that provision was taken out of the law as it ultimately passed. So I do think that there are things to do right now in every state. For example, and perhaps most importantly, every state should be voting with paper ballots, paper ballots that can be recounted by an objective group, by a court or by an independent body that's charged with doing so in the process of any kind of election contest. There's a lot that could be done right now.
SACHA PFEIFFER What happens if we don't stop these attempts at election subversion? How high are the stakes?
RICK HASEN Well, the stakes are the future of American democracy, because if you can't trust the vote count, you don't have a democracy. And so much has been done to undermine confidence in the election process. Even more undermining of that process would happen if election results were actually stolen. This is a really scary moment in American democracy, the scariest moment of our lifetimes.
SACHA PFEIFFER Rick Hasen is the chancellor's professor of law and political science at the University of California, Irvine, and he's also co-director of the Fair Elections and Free Speech Center. Rick, thank you.
RICK HASEN Thank you.