Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The confusion and chaos surrounding the Iowa caucuses reveals the
Speaker 1: distrust many voters have in the fairness and accuracy of
Speaker 1: American elections. Assurances from Iowa Democratic Party Chair Troy Price
Speaker 1: that the data was always secure did not quiet renewed
Speaker 1: concerns about that state's first in the Nation caucus. I
Speaker 1: have caucused for twenty years, and I know how important
Speaker 1: it is for to our party, to our states, and
Speaker 1: to everyone from our neighbors to new voters to be
Speaker 1: able to come together all across the state. We want
Speaker 1: Iowans to be confident in the results and in the process,
Speaker 1: and we are going to take the time that we
Speaker 1: need to make sure that we do just that. Joining
Speaker 1: me as election law expert, Richard Hassan a professor at
Speaker 1: u C Irvine Law School. His new book is Election Meltdown,
Speaker 1: Dirty Tricks, Distrust, and the Threat to American Democracy. You
Speaker 1: discuss four factors that are increasing mistrust in our elections.
Speaker 1: The escalation of voter suppression, in competence in the administration
Speaker 1: of elections, foreign and domestic dirty tricks, and inflammatory rhetoric.
Speaker 1: If you had to list the most important of these,
Speaker 1: which would it be, Well, I don't know that I
Speaker 1: can name one, because a lot of these things work together.
Speaker 1: So the biggest concern about voter suppression, I think, is
Speaker 1: not how many people are not being able to vote,
Speaker 1: but what it does to people's confidence in the process.
Speaker 1: So take voter ID laws for example. We know that,
Speaker 1: in part thanks to countermeasures, they don't seem to have
Speaker 1: a big effect on turnout. There are other laws that
Speaker 1: are more suppressive that you have an effect on turnout,
Speaker 1: but claims of voter fraud there are used to justify
Speaker 1: laws like voter ID laws convinced Republicans that voter fraud
Speaker 1: is a major problem, and the laws that are passed
Speaker 1: in response to the claims of voter fraud convinced Democrats
Speaker 1: and voter suppression is a major problem. And so we
Speaker 1: have a double whammy where both sides believe that people
Speaker 1: are cheating in the elections, and it feeds into a
Speaker 1: general mistrust of the process. You mentioned that Phish feed
Speaker 1: Kobak is arguably the most important voting rights trial so
Speaker 1: far in the twenty one century. Tell us why, and
Speaker 1: this is a good example of a counter example to
Speaker 1: voter I D laws where we're not sure that they
Speaker 1: have a big effect. Kansas had passed a law that
Speaker 1: required if you wanted to register to vote, not each
Speaker 1: time you go vote, but if you want to register
Speaker 1: and be eligible to vote, you had to produce documentary
Speaker 1: proof of citizenship. So show me your paper's law, come
Speaker 1: up with your birth certificate or your naturalization certificate if
Speaker 1: you want to be able to register to vote. And
Speaker 1: we know that before a federal district court imposed a
Speaker 1: pluminary junction against this requirement, about thirty thousand people had
Speaker 1: their voter registrations suspended. They were not able to register,
Speaker 1: and they would not have been able to vote had
Speaker 1: the court not acted. So that's a pretty significant effect
Speaker 1: at issue in Fish versus Kobec. It was a complicated
Speaker 1: legal case, but an issue when it went to trial
Speaker 1: was the question whether non citizen voting, which is illegal,
Speaker 1: was a major problem because the state of Kansas, if
Speaker 1: it wanted to impose this additional requirement in some tension
Speaker 1: with federal law, which says, you know, all you have
Speaker 1: to do is basically put your name on a postcard
Speaker 1: and do a few other things and you can register
Speaker 1: to vote. The question was is there a substantial problem?
Speaker 1: And here was the chance for Chris Kobach, former Secretary
Speaker 1: of State of Kansas, who decided he would actually litigate
Speaker 1: the case as one of the lawyers in the case.
Speaker 1: Very unusual. It was his burden to show that nonsense
Speaker 1: and voting was a serious problem, and he called the
Speaker 1: small amount of non citizen voting he could point to
Speaker 1: on a TRUO cases the tip of the iceberg. And
Speaker 1: I named Chapter one of Election Meltdown the icicle because
Speaker 1: Judge Julie Robinson, the chief judge of this Kansas Federal
Speaker 1: District Court, said it was not an iceberg. It was
Speaker 1: merely an icicle made up mostly of administrative error. And
Speaker 1: lots of times when you probe beneath the surface, what
Speaker 1: you find is that claims of malfeasance actually turned out
Speaker 1: to be incompetence. That we see this across the board,
Speaker 1: Democrats Republicans, but it's often turned around and made into
Speaker 1: a claim of someone trying to cheat because we're so
Speaker 1: polarized that people don't believe those things. And so Fish
Speaker 1: versus Cobach was so important because here was the chance
Speaker 1: in a federal court with the rules of evidence, make
Speaker 1: your case, and the judge found abysmally Coback failed to
Speaker 1: make his case so bad that he was actually sanctioned
Speaker 1: twice in that case. At one point he was required
Speaker 1: to get a continuing legal education course in trial fundamentals
Speaker 1: in order to satisfy the court's contempt finding. Despite all
Speaker 1: the evidence to the contrary, why do we still see
Speaker 1: people arguing the need for strict voter id laws. So
Speaker 1: I think the answer is a political answer. The Republican
Speaker 1: Party in and started to see that the number of
Speaker 1: voters of color, younger voters, voters who make up kind
Speaker 1: of the Democratic Party coalition, they're all voting for Democrats,
Speaker 1: and the Republican Party was increasingly becoming a white rural party.
Speaker 1: And so there were two approaches that the Republican Party had.
Speaker 1: One was to try to expand the appeal of the
Speaker 1: Republican Party. This was George W. Bush's approach. This is
Speaker 1: what the so called autopsy that the Republican Party did
Speaker 1: after the elections suggested. The other is shrink the electorate,
Speaker 1: make it harder for people to register and vote. And
Speaker 1: so it's no coincidence that in those places where these
Speaker 1: strict voter ide laws are passed, and these other strict
Speaker 1: voting laws are passed, they're almost exclusively in Republican dominated
Speaker 1: legislatures creating these rules. Not every Republican legislature is doing this,
Speaker 1: and there have been a lot of states with Republican
Speaker 1: election ministrariores and legislatures that have improved things. Ohio, for example,
Speaker 1: moved to online voter registration. Right, look at Florida where,
Speaker 1: thanks to an amendment getting around the legislature, they're now
Speaker 1: re enfranchising felons, although this litigation about that. But in
Speaker 1: those places where they're passed, they seem to be aimed
Speaker 1: at trying to make it harder for people who are
Speaker 1: likely to vote for Democrats to register and vote. They
Speaker 1: don't always have that effect, but that seems to be
Speaker 1: their intent. So let's turn to the Supreme Court for
Speaker 1: a moment. How has the Roberts Court responded to voting
Speaker 1: rights cases in general? Yeah, so the Supreme Court decided
Speaker 1: the case out of Ohio. This was in the Hoosted
Speaker 1: case where the Court allowed Ohio to remove voters from
Speaker 1: the voter registration roles if they hadn't voted in two
Speaker 1: consecutive national elections and hadn't responded to an attempt to
Speaker 1: contact them. It was a very technical case. It was
Speaker 1: about the National Voter Registration Act, which is laws called
Speaker 1: the votor voter law that requires states to offer certain
Speaker 1: opportunities to register and certain rules about pershing. But you know,
Speaker 1: generally speaking of the Court has been not very receptive
Speaker 1: to voting rights claims against laws that make it harder
Speaker 1: to register vote. We can go back to two thousand eight,
Speaker 1: the Crawford versus Marion County case, where the Supreme Court
Speaker 1: upheld indiana strict voter ide law. The court allowed Texas
Speaker 1: voter ide law to go into fact. I mean, there
Speaker 1: are all kinds of cases that have come up on
Speaker 1: an emergency basis. The Supreme Court, I would say, the
Speaker 1: Court has more conservatives than liberals. The conservves tend to
Speaker 1: believe these measures are necessary in order to prevent the
Speaker 1: possibility of fraud or to promote voter confidence, and so
Speaker 1: I don't expect going forward we're going to see the
Speaker 1: Supreme Court playing much of a backstop role except for
Speaker 1: laws that might be really egregiously affecting the right to vote.
Speaker 1: The Supreme Court put an end to preclearance in and
Speaker 1: Shelby County, the holder how much has that affected voting rights? Well, so,
Speaker 1: one of the things that this law did was it said,
Speaker 1: if you were a jurisdiction with the history of racial
Speaker 1: discrimination voting, and you wanted to do something as simple
Speaker 1: as move a polling place across the street, or go
Speaker 1: from nine polling places to eight polling places jurisdiction, you
Speaker 1: had to go to the federal government and you had
Speaker 1: to prove to the federal government, either to a three
Speaker 1: judge court or to the Department of Justice, that the
Speaker 1: change would not make protected and already voters works off.
Speaker 1: And so we know that since Shelby County, there have
Speaker 1: been lots of voting changes that have been put in
Speaker 1: place in these jurisdictions that used to be covered under
Speaker 1: this part of the Voting Rights Act, and some of
Speaker 1: them have been the subject of lawsuits under other provisions
Speaker 1: of the Voting Rights Act or other kinds of lawsuits
Speaker 1: claiming that these laws are discriminate. Tory with the old
Speaker 1: Section five preclarance rules, it was the burden on the
Speaker 1: states that were under this these rules to show that
Speaker 1: things would not get worse. Now the burden is on
Speaker 1: the plaintiff to show that things are much worse in
Speaker 1: order to get a law blocked, and so it's a
Speaker 1: lot harder. And so I would say what we've seen
Speaker 1: is that plaintiffs have had mixed success in trying to
Speaker 1: stop rules that otherwise likely would have been stopped by
Speaker 1: the preclarance rules. When you talk about election administrator incompetence,
Speaker 1: Florida comes to mind the twenty eighteen elections. Everyone was saying,
Speaker 1: why is this happening again in this same county. Our
Speaker 1: local officials not doing what they should be doing to
Speaker 1: make sure that people are adept at their jobs. So
Speaker 1: I think that, you know, the first thing to recognize
Speaker 1: is that we don't conduct a single election for president
Speaker 1: or single election for Congress. We have something like nine
Speaker 1: thousand election jurisdictions, each run by local county or sub
Speaker 1: county election administrators, most of a pretty good job with
Speaker 1: what they have to work with with tight budgets. There's
Speaker 1: a great push towards professionalism, but there are these weak links,
Speaker 1: you know. We saw it in Iowa in the way
Speaker 1: the Democratic Party was trying to run its caucus. We
Speaker 1: saw it in in Florida with Broward County, where they
Speaker 1: missed a recount deadline in a very close U. S.
Speaker 1: Senate race by two minutes because the employees did not
Speaker 1: know how to properly upload their results to a state website.
Speaker 1: We can look across the country, UH, and this is
Speaker 1: a bipartisan problem. Democratic and Republican election ministrators. These pockets
Speaker 1: have incompetence. We tend to focus more on the big
Speaker 1: cities which are controlled by Democrats because that's where there
Speaker 1: are many more votes. And then that's where you start
Speaker 1: seeing claims that no, it's not a competence as actually
Speaker 1: attempt to try to cheat in the elections. So there's
Speaker 1: a lot of that loose rhetoric in your book. This
Speaker 1: was a very scary thing to read. There's good reason
Speaker 1: to believe that Russians have the hacking ability to bring
Speaker 1: down the elector go grid on election day in a
Speaker 1: swing state democratic city like Milwaukee or Detroit. Is there
Speaker 1: any reason to think they won't do that. It seems
Speaker 1: like it's the next step after the election interference. So
Speaker 1: this would be I think an act of war, UH
Speaker 1: to interfere with an election in such a serious way.
Speaker 1: And we know that in the president Obama actually picked
Speaker 1: up the Red phone. I don't know there actually was
Speaker 1: a red phone, but picked up the red phone to
Speaker 1: Moscow and said cut it out with some of the interference.
Speaker 1: And at that point we only knew a little bit
Speaker 1: of what the Russians were doing. Unfortunately, now we have
Speaker 1: a president who not only has not aggressively taken steps
Speaker 1: to prevent foreign interference, he's now invited foreign interference from
Speaker 1: at least three countries, Russia, Ukraine, and China. And so
Speaker 1: it's very concerning. There's one point in the book where
Speaker 1: I refer to a New York Times report where McK mulvaney,
Speaker 1: the acting chief of staff for President Trump, is talking
Speaker 1: to Kristen Nielsen, who was then the Department of Homeland
Speaker 1: Security secretary, and basically says, don't talk to Trump about
Speaker 1: election security. Keep it below his level, with the idea
Speaker 1: that you know, this is something we need to work
Speaker 1: on as a country, but keep it from the president.
Speaker 1: And that's just a very bad position to be in.
Speaker 1: But it would be an egregious violation of our sovereignty
Speaker 1: if someone tried to mess with our elections this way,
Speaker 1: and it's the kind of potential meltdown scenario that I
Speaker 1: worry about that we don't have a lot of control
Speaker 1: over all. Right, there's things we can do to make
Speaker 1: sure electionment is trying to do a better job. We
Speaker 1: can do a better job educating the media, for example,
Speaker 1: about not calling races early while ballots are still being counted.
Speaker 1: But it's really up to cybersecurity experts in government and
Speaker 1: in the private sector to make sure that our electrical
Speaker 1: grid is properly maintained. How many states have paper ballot
Speaker 1: requirements because it seems like every time something happens more
Speaker 1: and more the answer is, well, you need a paper
Speaker 1: ballot as well. So this is kind of a moving
Speaker 1: target because given that we have this decentralization of our
Speaker 1: election system, states and localities are have in different machinery
Speaker 1: and changing things. I think the good news is that
Speaker 1: these totally paperless ballots are on their way out. These
Speaker 1: are what referred to as d r E machines. These
Speaker 1: are the ones that were electronic only and if you
Speaker 1: did a recount, it just meant you push the same
Speaker 1: button again. The new controversy is over the newest kind
Speaker 1: of voting machines, which we'll be hearing a lot more
Speaker 1: about these are ballot marking devices or b m d s.
Speaker 1: So you walk up, there's a touchscreen, you mark all
Speaker 1: your choices, and then a ballot gets printed with your
Speaker 1: choices on it. Now here's where there's some controversy along
Speaker 1: with the names. So say you know you vote in
Speaker 1: Grasso for president. Along with the names, it's going to
Speaker 1: have a barcode. And when the ballot counting devices count
Speaker 1: the ballots, they're not going to be looking for, like
Speaker 1: optically scan the name of the candidate. There instead going
Speaker 1: to count the barcode. And of course if you look
Speaker 1: at the barcode, it's not human readable. You can't look
Speaker 1: at that and say is that a vote for tunors
Speaker 1: that vote for someone else. And so one of the
Speaker 1: questions is when you have a recount, are you going
Speaker 1: to count the barcode or you're gonna count the name
Speaker 1: that's printed on the paper. And Georgia, for example, looks
Speaker 1: like they're moving towards counting the barcode, and the barcode
Speaker 1: controls and then how do we trust that the results
Speaker 1: are actually accurate. It's paper, but it's not something that
Speaker 1: a human being can look at and say, yes, that's
Speaker 1: a vote for this candidate or another. While we're here,
Speaker 1: let's talk about the Iowa caucuses and what happened there.
Speaker 1: The Department of Homeland Security Secretary Chad Wolfe said that
Speaker 1: the Department Cyber Division had offered to test the APP
Speaker 1: and the Iowan said no thanks. Well, let's be clear,
Speaker 1: it wasn't the Iowans in terms of the Iowa election officials,
Speaker 1: it was the Democratic Party. So we've got this really
Speaker 1: weird system where with these caucuses, these are privately run
Speaker 1: by the political parties, they're not run by the government.
Speaker 1: And I think it's terrible that the io Democratic Party
Speaker 1: turned down the ability to test the apps. I think
Speaker 1: it's terrible too when once every four years the eyes
Speaker 1: of the world on you to not have done more
Speaker 1: sufficient testing to make sure that the system could accurately work.
Speaker 1: And of course they were doing us at the same
Speaker 1: time that they changed the rules for how they were
Speaker 1: going to aggregate votes and decide, you know, who had
Speaker 1: the right threshold, and how they were going to report
Speaker 1: the winners and the losers, and so it was a
Speaker 1: big mess. Um, we need to have better election security,
Speaker 1: but we also probably need to take away from the
Speaker 1: political party's the ability to run these very important elections,
Speaker 1: and they should be in the hands of government officials.
Speaker 1: Nevada is reportedly planning to use this same app. When
Speaker 1: phones can be hacked so easily, why use a phone app.
Speaker 1: So let's be clear, the app is not being used
Speaker 1: to cast votes. It's being used to report to tallies
Speaker 1: at caucus sites, and there is a piece of paper
Speaker 1: that will be a backup, and you know, we can
Speaker 1: check and make sure. And this is one of the
Speaker 1: reasons I think that the Iowa Democrats didn't immediately announce
Speaker 1: the results because they don't want to be in a
Speaker 1: situation where they've relied on this app where there are problems.
Speaker 1: They get a vote total, they announced the winner and
Speaker 1: a loser, and then they have to go back a
Speaker 1: few weeks later and say, oops, you know that was
Speaker 1: the wrong total. Better to be taking more time and
Speaker 1: getting it right. And so I think getting it right
Speaker 1: would include doing some kind of check to make sure
Speaker 1: that the numbers that were recorded in the app match
Speaker 1: the numbers that are physically there. That that could be
Speaker 1: talking over the phone or sending a texted picture of
Speaker 1: the vote totals. I mean, there are different ways to
Speaker 1: try to do this. But ideally we shouldn't be doing
Speaker 1: this at all. We should have hand marked paper ballots
Speaker 1: that are counted in a way that's uniform across the jurisdiction.
Speaker 1: So politicians are latching onto this problem in Iowa and
Speaker 1: saying that Iowa shouldn't keep its status as the first
Speaker 1: in the country to select a presidential nominee. Do they
Speaker 1: have a good point? Well, I've been against the caucuses
Speaker 1: for other reasons for a long time, but this is
Speaker 1: I think the nail and the coffin. I think caucuses
Speaker 1: are exclusionary. I was a state that you know, there's
Speaker 1: a question about its diversity in terms of representing the
Speaker 1: Democratic Party. There are all kinds of issues about Iowa,
Speaker 1: but I think at the very top of the list
Speaker 1: is we should not have this political party being the
Speaker 1: one running this. Instead, it should be run like a
Speaker 1: regular primary, as we do in most other states. Thanks
Speaker 1: for being on Bloomberg Law. Rick Fath, Professor Rick Hassen
Speaker 1: of the U C. Irvine Law School