A Q&A with election law expert Richard L. Hasen on how to avoid a democratic meltdown.
This is one of a series of interviews by Bloomberg Opinion columnists on how to solve today's most pressing policy challenges-
Francis Wilkinson: This election is shadowed by threats, including foreign sabotage and an incumbent president who refuses to say if he will abide by the results. The title of your new book is "Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy." How concerned should we be about the perils ahead?
Richard L. Hasen, professor of law and political science, University of California-Irvine School of Law: I am very concerned about the perils ahead. You mentioned two — foreign interference and a President who is seeking to delegitimize the voting process through tactics like attacks on mail-in ballots — but there are many other concerns. At the top of my list is how we are going to conduct a safe and legitimate election that voters can have confidence in during a pandemic.
Lots of states are seeing many more people wishing to vote by mail, which is a natural reaction to the potential danger of in-person voting. People fear long lines as polling places are consolidated. But voters are actually more likely to be inadvertently disenfranchised voting by mail. Voters who are unfamiliar with mail ballots and the vote-by-mail process often make mistakes in completing and returning ballots. Election administrators, or the postal service, can fail to deliver or process mail ballots in time.
I'm concerned also about deliberate efforts to make it harder to register and vote, as well as domestic (not just foreign) misinformation campaigns that may provide incorrect instructions on how to cast ballots. I've never been more worried about our ability to conduct a fair election that's also accepted by most people as fair.
FW: Do states and localities have the resources they need given the challenges?
RH: They do not. Congress allocated only about one-fifth to one-tenth of the funds deemed necessary to run a successful election both in-person and by mail in the midst of a pandemic. Those additional costs exist whether Congress allocates the money or not. So far in the latest COVID bill negotiations, Democrats in the House have proposed much more money for elections while Republicans in the Senate have not. Inadequate resources increase the likelihood of sloppiness and errors — something we cannot afford given our tense, closely divided and polarized political state.
FW: Given the severity of threats and the inadequacy of resources, what can election administrators do to mitigate dangers?
RH: There's a lot that election administrators can do to minimize the chances of an election meltdown. First, they need to make sure they are prepared for uncertainty in both in-person and mail-in voter turnout in November. It's unclear how many people will vote in each way. There must be sufficient capacity to deal with complications or large turnout. When possible under state law, administrators should encourage people to vote early so that demand can be spread over many days or weeks. I led a committee that issued a report, Fair Elections in a Crisis, that laid out many of the things that need to be done right now to ensure that November goes smoothly.
Administrators also need to be prepared for a surge in last-minute requests for mail-in ballots, and work with the postal service to make sure those ballots can be delivered and returned in time to be counted. If that turnaround is jeopardized, then administrators need to instruct late mail voters to vote in person instead. For in-person voting, safety and health measures must be in place to minimize the risk of voters contracting Covid-19.
Administrators need to have contingency plans in place to deal with everything from machine breakdowns and absentee poll workers (due to illness or otherwise) to cyberattacks and natural disasters. They also need to be transparent about what they are doing, and establish clear protocols for security and counting ballots. In places where local election administrators have proven incapable in the past, state election officials should step in early, to the extent state law allows, to prevent mistakes in November. As for absentee (i.e. mail-in) ballots, states need to give election administrators the power to process those ballots before Election Day. Everything but the counting should be done in advance to alleviate pressure and make sure that legitimate ballots are accepted and subsequently counted.
Finally, election administrators need to be ready to combat misinformation about the election, and communicate clearly via official channels about when, where and how people vote in each jurisdiction.
FW: Administrators have a wide range of competence. They also have a wide range of partisan loyalties and incentives. Are there certain swing states that strike you as potential weak spots on the basis of one or the other?
RH: I do think that most election administrators are trying to do their best under trying circumstances, whether they are Democrats or Republicans. There are exceptions, no doubt, at both the state and local level, where some administrators hold allegiance to their political party first. I'm always worried about the competence of election administration in Florida, which has a history of serious errors. This year, I'm especially concerned about Pennsylvania and Michigan: Can election officials in their biggest cities handle this election during a pandemic? The 2020 primary election in Detroit, for example, revealed problems tracking ballots, and not for the first time. That gives me great concern.
Part of the problem is that many state election officials do not have adequate supervisory power over some of their weak spots. And of course we have all the problems inherent in a hyper-polarized system.
FW: Election law used to be a pretty obscure niche. How did you get started?
RH: I studied both law and political science in graduate school, and the field really took off after the disputed 2000 election and Bush v. Gore. Over the past 20 years, as I show in my book "Election Meltdown," election litigation has nearly tripled and it seems that any election rule that can be litigated is being litigated. When I'm busy, the country's in trouble.
FW: Is there anything regular citizens can do to bolster a shaky system?
RH: Yes. Our election system is so decentralized — we will be running something like 10,500 simultaneous elections for President — that individuals can push at the local level for adequate funding, competent election administration and transparency. Voters should also have a plan for when and how they are going to vote. Those who are able can volunteer to be poll workers. People should also avoid spreading false information on social media. It's so easy to share things that are consistent with one's world view, but before you share a message, it's important to verify that it's actually true.
FW: What's your bottom line for a fair election?
RH: As a bottom line, everyone has a role to play to make sure we have a fair election in November that most people believe is fair. Election administrators need to work hard to ensure safe and accurate voting and tabulating of votes; social media companies need to remove voting disinformation; the news media need to educate the public that the election may be too close to call on election night; leaders of both parties need to reject unsubstantiated claims of voter fraud, which are used to try to delegitimize results; and voters need to be sure to have a voting plan so that they can cast a vote that counts.
Disclaimer: This interview first appeared on Bloomberg, and is published by special syndication arrangement.