Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One oddity of writing a book like Election Meltdown is that the worse things get, the better it is for the book. That is, the more conspicuously our election system actually does melt down, the more Rick Hasen’s book feels relevant, urgent, even prescient. Rick is a good small-d democrat and an altogether decent human being, so I’m certain he was not especially tempted to hope for anything like the Iowa Caucus meltdown. But good lord. As it happens, I had just started reading his book while the caucus was collapsing under the weight of its own incompetence and I felt like I was reading a field guide.
Election Meltdown is a story of four sources of problems in election administration: voter suppression, pockets of incompetence in administration, dirty tricks, and incendiary rhetoric about stolen or rigged elections. The book argues convincingly that these interact with and fuel one another in various ways. The sobering thing about watching the Iowa caucus meltdown through Rick’s lens was that two of his four elements were not even present (voter suppression or dirty tricks, so far as I am aware*), and yet one pocket of incompetence was enough by itself to lead to a material delay in the results, a significant loss of public confidence in their accuracy, and inevitably, some eagerly “incendiary” (to use Rick’s word) cries of a “rigged” caucus, oddly but totally unsurprisingly coming not from prominent Democrats but from prominent Trumps. This raised an obvious question: in November, when we will almost certainly have all four elements of Rick’s story in play at the same time instead of two, how much worse is it going to get? If the election is close, most likely a lot worse.
[*Update: Whoops. It turns out that there were some dirty tricks in Iowa. Those hourlong delays many precincts found in reporting their results were due in part to a substantial number of Trump supporters calling in to “clog the lines,” having obtained the Iowa Democratic Party results-reporting phone number from the web cesspool 4chan. Thanks to Rick Hasen for pointing this out in an email. The rest of my original post follows.]
Election Meltdown reads like Rick’s shorter writing in Slate and on his indispensable Election Law Blog (the book draws on some of the Slate pieces). Like those writings, the book does a good job of avoiding unnecessary complication, showing rather than telling, and generally keeping the story sharp and swift. The book also has to confront the same two paradoxes that so much of Rick’s writing on these matters must confront. The two paradoxes, as I see them, are as follows.
1. The Paradox of Public Confidence
The first is what I’d call the paradox of public confidence. Rick wants to safeguard both (A) the objective fairness and accuracy of elections and (B) the subjective sense of public confidence that elections are indeed fair and accurate. One could obviously specify both (A) and especially (B) with considerably more precision. But for purposes of this blog post let’s just say that at some point, without some version of (B), you begin to spiral into territory mapped out by books like How Democracies Die. So you need both (A) and (B). The paradox is that despite the close relationship between (A) and (B), some efforts to protect (A) can undermine (B).
Voter suppression is bad for more than one reason; as Rick argues in Election Meltdown (and as I and others have argued in lots of places) voters’ rights have value that’s independent of any story about election outcomes. Still, a lot of the problems that Rick documents, both voter suppression and dirty tricks, are much worse to the extent that they undermine the fairness and accuracy of the election results (A). If we’re going to prevent and deter such tactics, we almost certainly need to shine a bright light on them. However, shining that bright light also has the effect of undermining (B), the subjective sense of public confidence in an election’s fairness and accuracy. Raising an alarm that an election may have been stolen tends not to improve people’s confidence that the system works.
The extra-diabolical part is that it’s often the same bad actors who would like to undermine both (A) and (B). For simplicity and ease of exposition, let’s call such actors Vladimir and Donald. Suppose some combination of Vladimir and Donald and their friends engage in dirty tricks and/or voter suppression, where the election is close enough that such tactics might conceivably have affected the outcome. Now what? If you complain too loudly that the dirty tricks or voter suppression may have affected the outcome, you play right into the hands of Vladimir and Donald, plus anyone else who wishes to discredit the fairness and accuracy of the election system and convince Americans that their votes don’t reliably count. Keep quiet and you’re suggesting you don’t think what they did was a significant problem.
Rick picks his way carefully through this terrain in the book. He ends up with some awfully fine distinctions, praising those who carefully calibrate their complaints about election malfeasance so as to avoid unnecessarily casting doubt on whether the system is working, and criticizing those who deviate from the careful lines he draws (in particular, Democrats who he argues too readily deem an election “stolen” when there is some voter suppression but arguably not enough to change the outcome). There’s a particularly interesting discussion in the book of Stacey Abrams’ calibrated statements after her brutal loss in a Georgia gubernatorial race that featured a considerable amount of voter suppression. In the end, this kind of calibration turns heavily on just how far the voter suppression and dirty tricks went in affecting the election outcome. Once the election really has been blown up, there’s no convincing justification for pretending it hasn’t. But often we can’t tell.
2. Arguing About What’s True With People Who Say Everything is Spin
The second paradox is a more generalized one. Here, Rick’s book, and election law generally, are just one especially pointed instance of a phenomenon that is slowly eating away at much of American public discourse. The American public sphere is, in its current incarnation, rather highly (and highly asymmetrically) polarized, with Republicans increasingly convinced that most of what were once viewed as mainstream, nonpartisan sources of authority and sound argument, from scientists to the mainstream media, are biased against Republicans.
Arguing with people who strongly hold that sort of view is sometimes not only futile, but actually counterproductive. It’s a little like arguing about objective truth with a committed epistemic nihilist who believes there’s no such thing as objective truth, only subjectivity and self-serving spin. In an argument like that, not only will you make no headway with your opponent, you’ll also have to deal with the fact that if anyone else is watching, the very fact that you’re having the argument tends to support the nihilist’s position over yours. (That’s the paradox. It’s a little like arguing with somebody about whether the two of you are really having an argument. The one who argues, “we’re not having an argument,” loses.)
There aren’t any committed epistemic nihilists in our politics, as far as I know. What we have is opportunistic nihilists, who see political gain in blowing up the possibility that anyone could assess what’s going on in our elections in a genuinely nonpartisan, objective way.
Rick has several strategies for dealing with all this. First, he has a strategy for how to make claims about factual but highly politicized matters such as the extent of voter fraud—matters where a skeptical, conservative reader might be disinclined from the outset to trust anyone who argues, as Rick does, that most claims about widespread impersonation fraud and noncitizen voting and so on are themselves fraudulent. Rick’s strategy is to really lean in to his general approach of showing rather than telling. We get considerable chunks of trial transcript, including his opening set piece, an absolutely remarkable series of courtroom confrontations between Dale Ho and the expert trial witnesses brought by Kris Kobach. Rick’s key move is to try to show us rather than tell us that these voter fraud claims got tested and came up dramatically short. It doesn’t get much more “fact-y” (as opposed to “opinion-y”) than quoting verbatim transcripts. Whether this will convince any skeptics is harder to say.
The second and more unusual strategy Rick employs is to insert himself into the narrative in the first person, and to show exactly how some of his critics from the right, such as J. Christian Adams, have attempted to recast him from a distinguished and relatively objective academic observer to a “raw enemy activist.” One of Adams’ colleagues complained that he was “sick of [Hasen] being the elder statesman in the eyes of the MSM” (the mainstream media) and suggested that Adams “push” Hasen’s “buttons” so that he’d become “unhinged” and in that way self-discrediting. In making the unusual choice to include material like this in the book, Hasen is making a bet that it is his opponents’ efforts that are self-discrediting. Who can take seriously such transparent, hackish, and ultimately unsuccessful attempts to undermine the reputation of a leading academic in the field?
Unfortunately the answer may be: quite a lot of people. As the foundations of our democracy smolder, and we all try to conceive of how we’re going to get out of this mess, one might think we would need to have some tough conversations across partisan lines, if we hope to reestablish any real foundation of trust and shared facts about critical matters such as the administration of our elections. But none of that can happen if those goals—a foundation of trust, shared facts—are themselves a threat to opportunistic nihilists who aim for just the opposite. Hasen does this work as well as anyone in the business, but it’s very hard to come to a shared understanding with someone whose considered political strategy is to set such shared understandings on fire and watch them burn.