Balkinization: The Easy and Not So Easy Fixes to an Election Meltdown

The Easy and Not So Easy Fixes to an Election Meltdown

Guest Blogger

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

Ciara C Torres-Spelliscy

Every voter should read Professor Rick Hasen's Election Meltdown before they vote in 2020, which focuses on the how elections are run and how partisans are less and less likely to accept an electoral loss.

Election Meltdown does a good job of explaining in language accessible to a lay person some of the problems that threaten American democracy like old voting machines and feckless administrators, and just as importantly, placing phantom fears in their proper place.

Hasen, a long-time critic of what he calls the “fraudulent fraud squad,” explains how fear of in-person voter fraud has grown out of proportion to its actual occurrence, which in most elections is rare to never. But with President Trump repeating the lie of voter fraud being rampant—including at times falsely accusing millions of voting fraudulently in 2016— the myth which used to circulate among lower level elected Republicans has been given a huge bully pulpit. This myth matters because the specter of election fraud is used by Republican lawmakers to justify more restrictive laws for voters, including strict voter ID rules. Moreover, Supreme Court Justices have also upheld voter ID on the vague theory that it prevents more fraud than it disenfranchises voters who cannot jump through extra administrative hoops.

There are also great vignettes in the book, like a selection of the trial challenging Kansas’s attempt to make voters produce records of citizenship instead of taking their word under penalty of perjury in Fish v. Kobach. Under this policy, Kansas held up the voter registrations of 30,000 people alleging they might not be citizens. As Election Meltdown describes, in the Fish v. Kobach case wonder-attorney Dale Ho of the ACLU caught the state’s expert who had placed Kansans on the “hold” list in a delicious trap. Ho asked the expert what he would have done with a name like “Carlos Murguia.” The expert admitted on the stand that he would code that name as “foreign.” But the joke was on the expert as Carlos Murguia is a U.S. District Court Judge who worked in the very courthouse where the trial was taking place. He is an American. Not surprisingly, in a victory for voters, Dale Ho won that case against Kansas Secretary of State Kris Kobach.

Hasen is also fair when noting mischief in American elections can come from Democrats and Republicans alike. He points to an effort in the Alabama special election for U.S. Senate between Doug Jones (D) and Roy Moore (R). A firm called American Engagement Technology spread lies about candidate Moore including a strange effort to convince people that Moore wanted a dry Alabama. Another effort made it look like Moore was being supported by the Russians. Neither was true. Given all of the things that were actually objectionable about Moore, including some troubling accusations of his interest in young girls while he was an adult, these lies seem like unnecessary overkill. But Jones won that Senate election, and that success likely sends precisely the wrong lesson to political operatives who will throw the truth to the wind in the struggle to win the next election.

Admittedly, when I realized in 2019 that I was writing a book called Political Brands about similar topics as Professor Hasen, who runs the Election Law Blog and has an encyclopedic knowledge of legal issues that arise in our democracy, I was worried. But what I found in reading Election Meltdown is there is plenty of electoral dysfunction to go around.

Though I was particularly interested in reading the moments where our books overlapped: Russian interference in 2016 election. In my chapter entitled “Branding Racism,” I recount how Russian intelligence officers targeted black American voters online with messages urging them to skip the 2016 presidential election. Hasen also covers these episodes in a chapter entitled “Dirty Tricks.” As Hasen wrote, “What stood out more than anything else in the Internet Research Agency’s social media efforts was Russia’s primary focus. The 2013 North Carolina Republican voter suppression law had [as a court described] ‘targeted African-American voters with almost surgical precision,’ and so did the Russians.” For me the Russian story is a testament to how porous American campaign finance laws are that the Russians could buy $100,000 in Facebook ads in rubles and no one stopped them in real time. For Hasen, the Russian anecdote is about voter suppression of a group of voters who are often targeted by domestic political actors. Of course, both interpretations of this complex topic are correct as this episode showed how a foreign government could spend money to try to depress voter turnout in an American election.

One of the only places I disagree with Professor Hasen in Election Meltdown is his assessment that “Trump is more a symptom of the American electoral system’s malfunction than a cause.” I think this underestimates the damage that Trump has done to electoral norms and laws since he announced his candidacy in 2015. And only time will tell which one of us is right. I hope that Hasen is correct because then most of the problems he points out in his book are fixable. If we want voters to have voter IDs, there are ways achieving that goal such that the necessary documents cost voters zero. If we want voting machines to have audit trails and for elections to be audited, we can mandate that in federal law. But if I’m right and democratic norms like valuing truth have been damaged, then more than administrative fixes in how we run elections will be needed.

Ciara Torres-Spelliscy is a Professor of Law at Stetson, a Brennan Center Fellow and the author of Political Brands. You can reach her by e-mail at ctorress at law.stetson.edu.

Posted 9:30 AM by Guest Blogger [link]