Professor Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. Hasen...
Professor Rick Hasen of UCI Law and the Election Law Blog joins us to talk all things election. Following up on his new book Election Meltdown we cover dangerous media expectations, vote-by-mail rules, how ballots are processed, the “Blue Shift” and the impact COVID is having on an already strained election system.
Thinking Like A Lawyer
An Election So Nice, You Should Vote TWICE! (No, You Shouldn’t)
Intro: Welcome to Thinking Like a Lawyer. With your hosts Elie Mystal and Joe Patrice talking about legal news and pop culture all while thinking like a lawyer. Here on Legal Talk Network.
Joe Patrice: Hello and welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I am joined again after a week’s absence by my co-editor Kathryn Rubino. How are you?
Kathryn Rubino: I’m doing good. How about yourself?
Joe Patrice: I am good. As well as can be expected. We missed you last week, but we had a very interesting discussion.
Kathryn Rubino: You did. You did.
Joe Patrice: About government and so on and now we’re going to get into more of the nuts and bolts of government today because we’re going to be talking about elections.
Kathryn Rubino: Well, it is sort of the thing that everyone is worried about and focused on and it seems very timely to say the least.
Joe Patrice: Exactly and I also found that i was getting a lot of questions from people who say — just people I know who aren’t in the legal community who say, “Oh, you know, you’re a lawyer. Explain to me how this works.” And I go, “Oh, I don’t know.”
Kathryn Rubino: A 100%, so my best friend from growing up’s mom who recently got registered to vote for the first time ever.
Joe Patrice: Really nice.
Kathryn Rubino: Yeah, it’s pretty awesome but very concerned about absentee balloting and ran me through all of her options, but I was like, this isn’t the best of my understanding. I’ll come back to you in a week or so when I get more information.
Joe Patrice: And yeah, it’s just one of those things that people are worried about. And the other things that people are worried about are you worried about a contract deadline? Contract Tools by Paper Software is the most powerful versatile and full-featured Microsoft word add-in for contracts. For less than a dollar a day Contract Tools can help you navigate complex legalese, fix common contract drafting problems and much more. See for yourself with a seven-day free trial, go to papersoftware.com/trial and get started today. That was as seamless as I thought I could.
Kathryn Rubino: Yeah, I mean I appreciate it.
Joe Patrice: So, today we are as we said, we’re going to be talking about elections. So, we brought back up for those of you who’ve been listening to this show for a while.
Kathryn Rubino: Friend of the show.
Joe Patrice: You would recognize a routine guest. We brought back Professor Rick Hasen UCI Law who is now helping out at CNN with their election law coverage. Welcome.
Rick Hasen: Great to be with you, again.
Joe Patrice: Yeah, so actually let’s start with the again part. So right after the Iowa caucuses, we had you on and we talked a little bit about that screw up and the real theme at the time for you was because you just put out a new book and it was perfect timing. But your theme was that we need more education in this country about the way in which elections, you know, aren’t going to be — you know, that we have kind of lack of patience and we believe everything has to happen now or else it’s somehow broken and we needed to train people better about the actual process. So how is that going?
Rick Hasen: Not well.
Kathryn Rubino: Oh dear.
Rick Hasen: Well, you know, when we had our discussion, it was the before times.
Joe Patrice: Right.
Kathryn Rubino: Yes.
Rick Hasen: And I, you know, I was already worried. My book is entitled “Election Meltdown” for a reason. I mean I’m worried about the way we run our elections and if we make it through November successfully, it won’t be because we’ve made enough improvements. It’ll be because we got lucky. But now with the coronavirus, I feel like things are just so much worse.
Joe Patrice: Yeah.
Rick Hasen: Ordinarily, you wouldn’t see a state like Pennsylvania or Michigan that has moved to allowing anyone to vote by mail to have just a flood of ballots, but now they’re going to and unlike places that vote all by mail like Washington or Utah or places that have a lot of vote by mail like California or Arizona, there are going to be some places where they’ve had almost no vote by mail where it’s just exploding. And that’s going to create a whole bunch of difficulties as is trying to vote in person because polling places are going to be consolidated. You can’t use the assisted living center as the polling location. You can’t find the poll workers because who wants to sit in an indoor space with a bunch of strangers for 14 hours. You know, so there’s a lot of challenges that are out there and so — and there’s not adequate funding because congress is not providing enough funding and the costs are going to be there so things are going to be sloppier. And so, things are just much worse than when we spoke in February.
Joe Patrice: One half of me was hoping that the pandemic was going to have the slight positive effect of no one really in their right mind believes that we’re going to have election results immediately on November like at 8 00 p.m. we will find out everything.
Kathryn Rubino: At 8:01, we have results in.
Joe Patrice: Which was one of the problems was that people had become accustomed to that and I thought, “Oh well, knowing that voting by mail is out there, maybe people will be a little more understanding that it’s going to take a few days.”
But yeah, no, you just you just listed a whole bunch of other worse problems.
Rick Hasen: Yeah, you know, it is possible that we will by the time at least those of us on the west coast go to sleep but we will know who’s won the election. But that will be not an official call, you know, official results of an election don’t come until weeks later. There are always errors made in terms of sending in vote totals, things have to be double checked. Ballots that were sent by mail including military ballots need to be counted.
But if there’s enough evidence that those who study in detail election patterns can say who’s won, then we might know the winner and so unlike Pennsylvania, which does not have a history of being able to process vote by mail ballots quickly, Florida does. If say Biden wins Florida, then it could be an early night. I’m not saying that there’s no way we’re going to know. But I think we have to prepare for disaster. And disaster would be such a close election that we don’t know and a protracted administrative and legal and potentially political fight over who’s won the election.
Kathryn Rubino: Yeah, no, we’ve heard a lot about sort of a blue shift that it’s very likely if or possible at the very least that you know, the person who has the most votes on election day will not ultimately be declared the winner and that a lot of these mail-in or absentee ballots can potentially shift the presumed winner from red to blue. Do you have many thoughts about that and how sort of the education on those issues is going nationwide?
Rick Hasen: So, we issued a report on ad hoc committee of leaders in law tech media and politics called fair elections during a crisis and you could google that term fair elections during a crisis, you’ll find our report. And you know, we made two related recommendations about this. You know, one is that the media needs to educate about things being too early to call. You know that’s what we we’ve talked about. But also, that partial vote totals are not necessarily going to be predictive of the winner and this is the so-called blue shift.
So, in 2018, in the congressional races in Southern California where I live, I believe there were seven races where republicans were ahead on election night where democrats ultimately won those races. Now you might say, “Well, why is that? Does that indicate some kind of cheating?” And there’s no evidence of cheating, there’s only evidence that democrats tend to vote later than republicans and democrats made a big push to have ballots cast early including by mail. And so, as those later arriving ballots came in, they were disproportionately democratic. If that’s the pattern we see and there’s reason to believe we’re going to see that pattern even more as Trump discourages his own supporters from voting by mail, by casting doubts over the integrity of the system. Then it is possible that Trump’s ahead in Pennsylvania or another state on election night only to see as Philadelphia finally gets its vote totals in or Detroit and Michigan that Biden has won.
And so, there has been I think a fair amount of education. Now, you know most people they don’t — they’re not political junkies like I am and like you guys are and you’re reading every story, “Oh, look what Fox just posted.” You know, it’s so exciting. Most people are going to get this along the way and so you know I hope that the news will penetrate through and I hope that all of the networks and major media organizations are prepared to keep repeating these messages as people come online to paying attention to the election. We’ve certainly given enough information to election officials and to media and social media companies that they should be prepared for what’s coming and prepare the public for it.
Joe Patrice: So, I guess actually you mentioned Trump. I think we should go back to one really burning question that we don’t really have a great answer to. I know that some legal luminaries have been asked about it. Is it legal for you to vote twice? The attorney general didn’t have an answer, so just can you do that?
Rick Hasen: So, in — the short answer is no. Under both Federal Law and State Law. Now, if somebody goes to the polling place because they voted by mail and they’re worried that they didn’t get confirmation as you can in many states, you know that their vote was received. And they say look, I don’t know if my vote was received and they cast what’s called a provisional ballot, a ballot that’s held on the side until they’ve determined whether or not it’s valid. I don’t think that’s going to be a crime, you know at least to the extent that these are — we’re talking about willful violations of the law. But it’s a pretty bad idea to do this.
My advice to everyone is not vote early and often but vote early. If you vote early in person, or you vote early by mail in many states with vote by mail, you can get some confirmation that your ballot’s been received and then you can relax on election day knowing your job is done in terms of voting. But it’s just this idea that the Trump put out that you’re going to test the system by voting more than once is profoundly irresponsible because it’s going to increase the already long lines of polling places. It’s going to decrease people’s trust in the process and it’s potentially opening up some people to committing felonies which is just completely irresponsible.
Joe Patrice: Well, you know, this gets to some of the logistical questions that people ask me and say, “Oh, you’re a lawyer, how does this work?” And I have to say, I don’t know. When you mention confirmation, so we’ve heard, you know, “Oh, there’s confirmation” and one thing that somebody asked me was, “Well, how does that work and my ballot still be secret?” And I hazarded at a guess but I didn’t really know, but I tried to work something out but how do you get confirmation that your ballot is received while it still remains secret and how do they keep track of where it is at all times?
Rick Hasen: Sure, so every state has their own rules. So, I can only speak generally about what many states do. This is one of the features of an election system with 10,500 different election administrators simultaneously running an election.
Kathryn Rubino: Sounds so terrible. Even in the best of times.
Rick Hasen: I’m trying to sound cheerful.
But the most common thing is that there’s tracking on the outer envelope, ballot tracking, like a barcode?
Joe Patrice: Okay.
Rick Hasen: And so your ballot is scanned when it goes out, it has tracking on it through the postal service if you’re turning it that way or you’re putting in the drop box that gets scanned when it arrives back in and they’re processing the outer envelope, not the inside secrecy envelope where you put your ballot but the outside envelope that has your signature or your identification information. The kind of anti-fraud provisions that the president pretends don’t exist with mail-in ballots. And after they’ve confirmed that your signature matches or whatever it is, then it’ll be recorded that your ballot has been received and accepted. The ballot will then be taken out of the envelope, not connected to your name and will be put into a pile for counting. So, that’s how you preserve both the secret ballot and the ability to know that your ballot has been received and is ready to go.
Joe Patrice: Okay, good. So now that brings to the next question is when people talk about these drop boxes that some jurisdictions are putting together, I was asked how do we know how secure those are. I don’t know if are those drop boxes actually in government buildings and secure locations or are they taken away every night or something. Like, just somebody was really freaked out about the security of the drop box process.
Rick Hasen: So, we have 10,500 different election administrators, I have to play that part of the tape. So everything’s different, some places no drop box allowed, right? In a lot of places, you’re allowed to drop off your ballot at the polling place which is of course in the presence of election workers and election officials. These drop boxes are typically in public locations, so once they’re are on the street, if they’re not in a government building, they’re outside. There’s often video surveillance of these locations and you know, there are boxes like mailboxes so people — someone can’t reach in and get them and you know, and they’re fireproof. You know, I mean they — we know that people might want to tamper with ballots and so they’re designed so that they’re secure and, in a location, where people won’t be able to tamper with them.
Joe Patrice: It’s almost like people have thought about this before.
Rick Hasen: Yeah, it’s funny I was peppering the election officials who run Los Angeles and Orange Counties. Two huge — Los Angeles is the largest election of jurisdiction in the country with questions that people have been sending me. What if I try to cheat this way? What if I try to cheat that way? And it’s like, no we’ve thought of that. You know —
Kathryn Rubino: You’re not that clever.
Rick Hasen: It’s like you know, we’ve been around this block before. People have designed these systems. You know, when fraud happens with absentee ballots, it’s typically that it’s not in the presence of election officials, its ballots stolen out of mailboxes or people being paid to vote in a particular way. These tend to be isolated instances. When they do happen in any kind of larger scale, they involve a conspiracy among a lot of people and they’re usually pretty easy to detect because if you go to vote and you said “No, no, you voted already” well then you know, then that becomes a way of finding this out. And so, the idea that you’d be able to trick the system and swing the vote in Pennsylvania with thousands of absentee ballots and not be detected is extremely unrealistic if you know anything about how these systems are actually run.
Joe Patrice: That’s something that I’ve said in the past that i think is true, but this is a good time to test it which is that all this concern about voter fraud marring a presidential election is somewhat outlandish. If fraud exists, it’s you know your–
Kathryn Rubino: Dog catcher.
Joe Patrice: Regional supervisor, whatever were like an election can really be turned on 50 votes here and there. But in trying to coordinate millions of votes to go the other way, it’s just really tough to see somebody stealing that many out of mailboxes.
Rick Hasen: And even that, you know, if you go and you look at lists of actual cases, so the heritage foundation has this list of every case since 1982 that they found many of which turn out to not be fraud at all, but you know it’s not over inclusive list or you look at this very good database that the News21 organization put of every prosecution between 2000 and 2012 that was made by American prosecutorial offices. In that database, there are 491 cases and the vast majority of them involve one-off things like somebody mailed in an absentee ballot application for someone who didn’t request it or we just had this case in L.A. guy forged his dead mother’s signature and voted in three elections by mail in 2012, 2014 2016. It’s a crime. The guy is going to be punished for it, but it’s not going to swing an election. I mean you could have an election that’s decided by one vote. The odds of that happening in the presidential campaign are so tiny, you know, even Bush versus Gore was came down to 500 votes. You know, the idea that you’re going to do this on, you know, major, major scale extremely unrealistic.
Joe Patrice: I don’t know about that. Bush v. Gore I think was a 5/4 vote
Rick Hasen: Well, the conservatives say it was 7/2. As a remedy teacher, I was very offended by this line. They say, you know, seven justices agreed there were protection problems. The only disagreement is as to the remedy. So other than what the court’s ordering, you know, were perfectly lined up.
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Kathryn Rubino: So, I mean I want to turn for a minute back to election night and election day. I think that it’s kind of been circled on lots of folk’s calendar with a bit of apprehension. There’s a lot of things I imagine that you’re looking for that day. We talked a little bit briefly already about Florida that if, you know, Florida is able to make a call quickly and efficiently, that might sort of, you know, predict how the rest of the election’s going to go. What are the other sort of key things that you are looking for on election day that will be either good indications that everything is going according to plan, you know, whether it’s to the sanctity of the election generally or about the candidates in particular or what are the things that you kind of have your eye out for that day?
Rick Hasen: Let me just clarify in Florida. It’s only Biden wins, that will be quick. If it’s a Trump victory, then we’ll be looking to other states. Yes. So one thing is, I mean really it comes down to the margin of victory. We’re voting as I’m sure your listeners recall with an electoral college total, right. So you have to get to 270 electoral college votes. It doesn’t matter for purposes of choosing the president if one side or the other runs up the score. In fact, there was reporting recently in the New York Times that the Trump campaign has given up on trying to win the popular vote, right. So you know you might say that the electoral college system is unfair, but that’s the system we have now. So we’re looking at the states that are going to matter to the electoral college map. We’re looking at, you know, is it a state that has easily produced results on election night. Is it a state that has seen many more people voting by mail and how many of those mail ballots have been returned and are outstanding? One of the things that Ohio just announced recently is that they’re going to when they release their vote totals, they’re going to say, “Here’s how many absentee ballots have not yet been returned.” And I think that’s something — that kind of reporting is very helpful rather than saying a hundred percent of precincts reporting.
When you see that language that’s only referring to in-person voting, at least in most places. And so I’ll be looking to see what’s still left to be counted and you know, I’m not the expert that can say, oh well look at this county, you know, the vote’s still out in this county and they lean heavily Trump or Biden or something like that. I can’t tell you that, but that’s kind of the kind of question that we’re looking at. Now if it turns out that by the time I go to sleep on the west coast, we don’t know who’s won Pennsylvania, then everyone’s going to be looking at their copy of the Pennsylvania election code. Everyone’s going to be zeroing in on Philadelphia. There’s going to be a press conference where they’re going to talk about how many ballots are left to be counted, you’re going to have claims by the parties about what’s going on. You’re going to have reports of problems because there are always problems in every election and this election, they’re going to be more problems because it’s coronavirus. There’s going to be a lot of disinformation and so one of the things I’m going to be looking at is for election officials and government officials to be out there correcting misinformation because it’s so easy for people to believe that which is on their side, you know, the mail truck that got hijacked, the ballots that were found in somebody’s trunk, you know, you hear this someone voted 20 times. You hear all of these stories and the allegations always get much more attention than the corrections that come later.
Kathryn Rubino: Sure.
Joe Patrice: One thing that happened here in New York in our primaries was that we had a race where they just didn’t count a bunch of ballots for weeks on end it seemed because we had we had a rule in place that the absentee ballots couldn’t even be looked at until after everything else had been counted, and that of course in under our current conditions led to that dragging out a long time. I’ve heard rumblings of certain jurisdictions saying they’re going to change their rules and start counting absentees as they receive them, just so they don’t get caught up in a flood. Is that something that more states should do or is there a reason why they should stick with the procedures that they know rather than try and make a change?
Rick Hasen: So let’s differentiate between the counting of the ballots and the processing of the ballots. I don’t think there should be any counting before election day. Counting doesn’t really take that long assuming you’re using machines that scan, you know, typically you fill them in with a pen or a pencil. They’re scanned by an optical scanner and the results pop out. That doesn’t take all that long. What takes a long time is the processing of the ballots before. We’re talking about earlier the bar codes and all of that. They’re checking your signature. In some states, they have computer software that initially checks your signature, if it passes your ballot goes on to the next step, if it doesn’t there’s a human-visual check. If there’s a problem that your ballot is rejected because your signatures don’t match and that happens a fair amount because, you know, a lot of people’s signatures change over time or they’ve signed their signature for their voter registration on one of those electronic pin pads at the DMV where you know it’s very hard to create a good signature. In a lot of States you have the chance to cure your ballot, you’re contacted by election officials and given a chance to come in and say no that’s really my signature. The more that that pre-counting stuff can happen before election day, the better off we’re going to be and there’s now a fight in both Michigan and Pennsylvania with republicans opposing allowing the processing of these absentee ballots before election day. I think it’s a crucial change that should be made because that change means there will be less pressure on election officials on election day and we’re more likely to get more results more quickly. We definitely want that. We don’t need the count before election day but we do need as many of those ballots processed as possible where people voting early there’s going to be plenty of work that election officials could do before election day to get us in the position, to get us to a quicker vote with integrity in the processing and the counting of the ballots.
Joe Patrice: So another COVID-related question which actually, this one I felt pretty ashamed of not knowing an answer too because even though I’ve lived in New York for a long time at this point. I’m originally from Oregon, so I’ve lived through an entity that votes entirely by mail and I was asked, Well with COVID and all these people getting evicted around the country, what’s going to happen with them if everything’s tied to your mailing address and I went “Huh I have no idea what the plan is in that sort of a situation.” Is that something that you’ve been hearing rumblings about what happens when people are being kicked out of their homes?
Rick Hasen: Right. Well, there’s that concern about people who are already homeless.
Joe Patrice: And how they’re going to vote?
Rick Hasen: Now, the thing is there are steps that people who are evicted or homeless can take in order to be able to vote.
There are procedures and place even in the States like Oregon where people can vote in person if they are not in — if they don’t have the ability to receive vote by mail or maybe they have a disability and they can’t vote the ballot as it’s sent in the mail. But the reality is that for a lot of these people if you’re homeless voting might be the last thing on your mind. And so one of the problems we have is that turnout is very low among people in economic distress and yes more steps need to be taken to try to reach out to those people because they have the same right to vote as everyone else and they shouldn’t be disenfranchised because they’re in poor economic circumstances, but I think it’s unrealistic to expect that voting is going to be at the top of the list of someone whose belongings are being tossed out onto the street.
Joe Patrice: That makes sense. Yeah. The person who asked me that question just said that, you know, they’d read something about how, I think it was in Houston. They’re about to start evicting like a hundred thousand people from various rentals and he was like what’s going to happen to them if they try to get an absentee ballot and I honestly didn’t know, but yeah that’s interesting and obviously true that they have bigger concerns. But, cool. That’s pretty much all my questions. I don’t know if Kathryn, do you have anything else?
Kathryn Rubino: Well, I mean, I guess you know is there any sort of takeaway that people who are apprehensive about the election can have or are there any sort of — what can the average person do to ameliorate any of these ongoing concerns without you know us able to necessarily change the laws in time?
Rick Hasen: Well, first for yourself personally have a voting plan, how are you going to vote, when are you going to vote. Vote as early as you can once your mind is made up and you have your ballot or your ability to go vote in person. So I think having a personal voting plan is important because our elections are so decentralized. You can kind of try to influence your local election administrators to make sure they have good plans in place to be transparent about their voting process to make sure that voters have access to be able to vote and that there is a process by which the vote counting and all of this can be done transparently and third, avoid disinformation and misinformation. It’s so easy when we’re in our echo chambers, everyone working for their team to think any news that indicates the other side is cheating must be true. But before you retweet or you share or like or whatever it is that you get to or swipe whatever it is you’re doing on your social media platform of choice make, sure that you’re not part of the problem by spreading misinformation, disinformation. Look for reliable sources of news because there’s going to be a fog of disinformation in the event that things are closed. People are going to try to influence things by putting bad information out there.
Kathryn Rubino: Yeah. And you know on that you know making sure you have the correct information, is there a place where you know a lot of rules are currently influx at the moment in different jurisdictions or they’ve recently updated the rules there. Where should folks be looking for their local jurisdiction? Is there any sort of clearinghouse or sort of where the most reliable sources to find the most up-to-date voting information for individuals?
Rick Hasen: Well, usually the secretary of state or chief election officer’s website of each State will have something on their website where you can put in your address or your zip code and it will take you to your local election administrator’s page where you get information. There are also a number of websites like usa.gov, we’ll get you some of this information. And the Washington post has recently set up a website which helps, you know, first to ask you where you live and how you’re planning on voting and will tell you what your options are and will link to the appropriate official websites to get that information.
Kathryn Rubino: Perfect.
Joe Patrice: Excellent. Yeah, so everyone go out, do that, figure out what’s going on.
Kathryn Rubino: (00:29:01) diligence before.
Joe Patrice: Vote as soon as you can to help out the whole system. You’re part of the stress on the system, so alleviate that as much as you can. These seem to be the takeaways. I’m getting from this so I’ll dutifully make that my election plan.
Rick Hasen: Yeah, flatten the absentee ballot curve.
Joe Patrice: There we go, there we go. That’s a concept that hopefully people understand.
Kathryn Rubino: No, they don’t. No, they don’t.
Joe Patrice: No, that’s fair. No, that’s fair. So, great. Well, great as always to have you here. Thanks so much for joining us. That was Professor Rick Hasen from UCI Law and the great election law blog. Check him out also on CNN where he’ll be talking about the election, all things election all the time. And thank you all for listening. You should subscribe to the show if you haven’t already, that way you get new episodes when they come out. You should give it a review, not just the stars and write something. It helps. You should be what, listening to The Jabot which is Kathryn’s show about diversity in law firms and law schools and you should be listening to our special reports about how COVID is unexpectedly changing the law at the ATL COVID cast(ph), all the other offerings of the LegalTalk Network.
Thank you again to Paper Software for sponsoring the show, check out contract tools in the seven-day free trial and with all of that said, I think we’re now done and we will check in —
Kathryn Rubino: And vote, remember to vote.
Joe Patrice: Yes, yes. And we’ll check in with everybody next week. Bye.
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