Saturday, February 29, 2020

Hasen's Timely Warning

Stephen Griffin

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

Rick Hasen delivers a warning with a real punch in Election Meltdown.  This is an essential account of the problems with our electoral system just in time for the 2020 election cycle.  I’m certainly going to have my students read it when I teach voting rights this fall.

Hasen, a well-known expert in election law, identifies four critical dangers facing American democracy: voter suppression, instances of incompetence by both parties in the administration of elections, “dirty tricks” (by which he means the malignant use of social media by foreign and domestic agents), and “incendiary rhetoric” from the political right and left in terms of charges of “stolen” or “rigged” elections.  These are all useful points that Hasen makes persuasively.

But persuasive to everyone?  The kind of legal and policy analysis Hasen provides in this book is considered more convincing if it follows the evidence and remains even-handed.  Hasen does follow the evidence but this means he cannot be even-handed.  The Republican Party stands accused of multiple instances of trying to suppress the vote of Democratic voters.  Meanwhile Democrats stand accused of occasional incompetence in election administration and often overstating the impact of voter suppression on electoral outcomes.  However, Democrats also seem more interested than Republicans in counting every vote, particularly in jurisdictions in which absentee voting is common.  These accusations do not exactly even out and Hasen does not pretend otherwise.  As he states, “only one party is seeking to make it harder to register and vote for those likely to vote for the other party.”  This will likely limit the impact of his book, but I’m willing to keep an open mind.

This situation would be easier to tolerate if there were Republicans more consistently standing up in opposition to oppose voter suppression.  Although there have been instances, such as Judge Posner’s, of Republican conversion to the reasonable, they are apparently few.  This appears to be a subject which legally knowledgeable Republicans are avoiding.  At the same time, Democrats have been assuming that undeniable instances of voter suppression make an inevitable difference to election outcomes.  Hasen himself has taken shots from what might be described as the militant left when he tried to maintain reasonability with respect to Stacey Abrams’s loss to Brian Kemp in the 2018 Georgia governor’s race.  Abrams clearly could not accept defeat and kept inventing creative ways to refuse to acknowledge that Kemp had won the election and was therefore the legitimate governor of Georgia.  But the race was also a terrible example of election administration – with Kemp, the former Secretary of State, as the chief culprit!  From the standpoint of any sort of reasonable agreement on proper election administration, the Georgia governor’s race was a disaster.

The differences between Republicans and Democrats in the electoral realm has unfortunately been reproduced in the judicial.  As Hasen says, Republican and Democratic judges view these issues through different lenses.  In this regard, I wish Hasen had delved into the constitutional issues raised by the seemingly continuous voting rights litigation in North Carolina in more detail.  He describes the questions raised by NAACP v. McCrory, the Fourth Circuit case in which the judges held that the North Carolina legislature had discriminated on racial grounds in passing a voter suppression law.  As he notes, that judgment might well have been reversed by a largely conservative Supreme Court but for a question of procedure.  I think it would have been helpful, especially considering the audience Hasen is trying to reach, if he had explained why.  Some might draw the conclusion from Hasen’s account that the Supreme Court had a basis to reverse, but then again the Fourth Circuit had a substantial argument that was widely cited at the time.  Or did it?  It’s actually not clear in the book.

Another issue in controversy is that of voter fraud, continually stoked by obviously false statements from President Trump.  Parenthetically, consider that from the standpoint of unitary executive theory, these statements are the official position of the executive branch.  Yet Hasen more than justifies his conclusion that the common charge made by conservatives of the prevalence of organized voter fraud has been put to rest.  As Hasen recounts, “[t]he collapse of the Pence-Kobach fraud commission and the Fish v. Kobach trial were watershed moments in the modern history of voter fraud mythmaking and attempts at voter suppression.”  And again, “there is no proof that it is any kind of serious problem in the United States.”  These conclusions deserve a wide audience, but they must be driven home.

There is also a somewhat sad story lurking in the background of Hasen’s account concerning federalism.  States have been criticized in the past for consistently underfunding the administration of elections and Hasen gives us no reason to believe things have changed.  Or, rather, things have changed but because of federal intervention in the wake of the 2000 presidential election disaster.  It is nice to see that Hasen thinks the Help America Vote Act of 2002 seems to have been helpful in this regard.

As far as solutions, I agree wholeheartedly with Hasen that the U.S. “should join other advanced democracies in moving toward nationalized, nonpartisan election administration, as well as implement automatic voter registration for all eligible voters with a national identity card to be used for voting.”  A reliable identity card would by itself address many different problems across a range of policy domains.  A potential problem is that in today’s environment, this well-intentioned reform may be read solely as an effort to crack down further on undocumented aliens.  Hasen’s discussion of what it would take to implement a nationalized approach to elections is too brief, but this is not that kind of book.

Through considerable scholarly effort (along with a blog that is essential reading), Hasen has become a reliable and useful voice in an area of the law often dominated by unproductive charges and counter-charges.  For that, everyone who seeks to preserve and advance American democracy owes him a considerable debt.

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