Rigging An Election? It's Not So Easy, Voting Law Expert Says
TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. Donald Trump has promised to keep us in suspense about whether he'll accept the outcome of the election if he loses. While he warns his supporters about election fraud and a rigged system, many voters are worried that they won't be allowed to vote because of recent voter ID laws that Democrats accuse of targeting students, poor people and African-American and Latino voters. My guest, Richard Hasen, is an expert in voting law who's trying to give a non-partisan analysis of problems in our voting system and point out where its real vulnerabilities are. He founded the Election Law Blog and co-founded Election Law Journal. He's the author of the books "The Voting Wars" and "Plutocrats United" about campaign money and the distortion of American elections. Hasen teaches law and political science at the University of California, Irvine.
Rick Hasen, welcome to FRESH AIR. So what was your reaction to Trump's now famous answer to the question of accepting the result of the election when he said, I'll look at it at the time, I will keep you in suspense?
RICK HASEN: Well, on the one hand, I was shocked because here was a presidential candidate at a debate, one of the most important moments in the campaign, saying that he might not accept the results of the election. And that's not something we've heard from a presidential candidate, at least in modern times. And on the other hand, I wasn't all that shocked given how much he had been talking about vote rigging going on. For probably the last month or so, he'd really been pushing the idea that the election was going to be rigged in a number of ways, but including through voter fraud and the vote count. So it fit into that general theme that he wasn't going to get a fair vote through the democratic process and that he'd have to wait and see how things shook out before he committed to agreeing to concede the election.
GROSS: What if he doesn't concede, or what if he doesn't concede immediately? What are his options?
HASEN: Well, you know, a concession itself doesn't have any legal significance. He could say he accepts. He could say he doesn't accept. You may remember that in the 2000 election, Al Gore was all ready to concede, and then when he found out that Florida was actually too close to call and he had a chance of winning that state, he unconceded (ph). It led to an unpleasant conversation between himself and George W. Bush.
The concession itself, I think, matters most in terms of the public accepting the results of the election. And it also takes some of the pressure off election officials who, over the next few weeks after the election, are in the process of actually making sure the vote counts are accurate, dealing with discrepancies, ultimately sending the election results to the governor of the state that's going to sign a certificate that's going to say which presidential electors are going to be sent to Congress, which votes. And then that ultimately leads to the choice of the president by the Congress in the beginning of January.
So it's much more of a symbolic thing than it is a legal decision to concede or not concede. But certainly if he doesn't concede, it's going to put pressure on others - other Republican leaders if it's not a close election - to come out and call on him to do so or to say that he should be ignored and that the country should accept Clinton as the next president.
GROSS: So if he doesn't concede, that doesn't necessarily mean he's going to contest the results.
HASEN: Right. So we can imagine a few different scenarios, right? One is Hillary Clinton - well, if Hillary Clinton loses, this is all off the table, of course. If Hillary Clinton wins and she wins in a blowout, then if he doesn't concede and he says he's going to file a contest, I don't know that anyone but his most diehard supporters are going to pay much attention. If it's a close election or at least it's close in a state whose electoral college votes would matter, then you would start looking at how the vote was conducted in that state, where there might be problems, where there might be room for perhaps a recount, where there might have been problems with voting machines or vote totals or anything anomalous.
And that could eventually lead to some kind of filing of either administrative action or a legal action, either in state or federal court, to try to contest the results. But if it's a blowout and there's, you know, 60 or 70 electoral college votes separating the two candidates, it really won't matter if he contests, say, a state that has 15 or 30 electoral college votes because it wouldn't make a difference.
GROSS: So what if Donald Trump doesn't concede and he declares that the election has obviously been rigged, and he's doing this, say, just to save face, what options would the Republican Party have?
HASEN: Well, I actually think you've really hit on what's behind all of this. Remember, his comments about rigging are not just about voter fraud. He's also claiming that the media is rigged against him, that these women accusers are lying. He recently said that the polls were faked. He called the recent ABC News tracking poll, which showed Clinton with a 12-point lead, a phony poll. I think if he continues to push this message after it's clear to Republican leaders that he's lost and he's lost badly, I think there's going to be a lot of pressure on them to say that people should move on.
I think there will be people looking to Paul Ryan, speaker of the House, and to McConnell, the Senate majority leader, to take a stand. Now, they've both been reluctant to take much of a stand on this issue. Paul Ryan's been a little bit better on the rigged election point. He had his spokesperson issue a statement maybe a week and a half ago saying that the - he had confidence that the election would be fairly conducted. Mitch McConnell has said nothing, but I think the calculation will change once it becomes clear - if it does become clear - that Trump has lost in a clear contest.
GROSS: You say it's hard to rig an election. Why is it so hard to rig an election? Why do you think it's improbable that an election can be rigged here?
HASEN: Well, we're talking about a presidential election. And so you have more people voting in a presidential election than any other election, so you'd have to swing a lot of votes to rig the election. So you're talking about in most places million - most large swing states millions of people voting. So how are you going to try to do something that's going to change the outcome of the election? Well, Trump has given us an idea of what he thinks is going to happen, how he thinks the election could be rigged. He said - I think it was about a month ago - that because Pennsylvania does not have a strict voter identification law, people will be able to go into polling places and vote five or 10 or 15 times for a particular candidate - I guess these would be Democrats voting for Clinton over Trump - and that this is going to swing the election.
So for my book "The Voting Wars," I tried to find a single election anywhere in the United States - local election, any kind of election - where the - from the 1980s to the time I wrote the book, 2012, where an election plausibly could have been called into question by this kind of impersonation fraud - couldn't find one, not one. And that's because it's a really dumb way to try to steal an election. You'd have to either register using a false name in multiple places and do this on a large enough scale to affect the outcome or you'd have to hire people to go into the polling place, claim that they were someone else on the voting rolls, hope those people on the voting rolls hadn't voted yet and then vote for them and that this scheme could be done on a large enough scale to affect the outcome of an election. That's not to say there's no voter fraud. And I think it's important to make this distinction. It's to say that there's no record of impersonation voter fraud, the kind of fraud Trump was talking about, affecting the outcome of an election.
We do have some instances of voter fraud. The most common kind of voter fraud we see, usually in a local election where maybe dozens or 100 ballots could make a difference, involving absentee ballots. Usually, it's absentee ballots that are bought or sold. I'll give you $20 for your absentee ballot and then I can vote it the way I want. Unlike impersonation fraud, when it's an absentee ballot, you can verify how someone voted because you have the actual ballot, so that does happen.
And for "The Voting Wars," I was able to find regularly in local elections - and certainly in some parts of the country there's been an unfortunate history of this, in parts of Kentucky, South Texas, parts of Florida. We have had this kind of fraud. But it's been in small local elections, never on a large enough scale, I think, to affect a presidential election and not the kind of fraud that Donald Trump is talking about to affect the outcome.
GROSS: Donald Trump has also warned about the number of dead people that are still on their voter registration rolls, and he's afraid of what's been described as the zombie vote, of people voting in the names of dead people.
HASEN: Right. So that is just a variation of the impersonation claim. The idea is that rather than vote for someone who might be at the polling place, you can pick a dead person. And this is based on the fact that there was a study by Pew which found that there were up to 1.8 million deceased voters on voting rolls.
Our voting rolls are not kept up to date as well as they should be. And things have improved in the last few years since that Pew study. But there is - again, there's no good evidence that dead people are voting in appreciable numbers. Every once in a while you hear a story, so you hear a story about a husband passes away, gets an absentee ballot in the mail, widow votes for husband. You do see some of those stories.
But we - again, we don't have situations of large numbers of people impersonating dead voters and voting. In fact, a few years ago in South Carolina, there were some sensationalist allegations made by some local election officials that dead people were voting and this was swinging the election, got a lot of headlines. And then the subsequent investigation found that, in fact, no, that wasn't the case. Lots of times what people think is fraud is just some mistake. For example, somebody signs on the wrong line in the polling book. But no good evidence that dead people - dead people's names are being used to commit large-scale voter fraud, just not happening. It may have happened, probably did happen in the 1960s and before then. But if we're talking about the modern era, which I date to say the 1980s forward, we don't see that happening in any appreciable amount.
GROSS: Trump is also spreading this fear that people who aren't citizens will vote.
HASEN: Yes, Trump - so Trump has said that - he's cited a study which found that there could have been enough non-citizen voting to have swung the North Carolina Electoral College vote for Obama over McCain in 2008. And what we know about non-citizen voting is that it's also extremely rare. It does happen occasionally. Sometimes it happens because non-citizens are registered to vote and don't know they're not allowed to vote. There are very few cases of this.
We do know that there are people like the secretary of state of Kansas, Kris Kobach, who's been - he's an anti-immigration zealot, and he's been pushing for all kinds of proof of citizenship laws and things to try to make sure that non-citizens don't vote. We've had two court cases recently decided against him, one from the United States Court of Appeals for the D.C. Circuit, one from the United States Court of Appeals for the Tenth Circuit. In both of those cases, the court said that he had presented virtually no evidence that this is a real problem, that the numbers are minuscule, they're tiny compared to the number of people that are voting.
There was just another recent study that just came out that claimed that thousands of people in Virginia were non-citizens that were voting. But if you actually went and you looked at the study and what it found, it found that while there were some forms that were put in from non-citizens, most of those were rejected. And in fact, over a 10-year period, I think looking at eight Virginia counties, only 31 non-citizens had voted. This is out of millions and millions of ballots cast. So we don't have a perfectly election system. We do occasionally have people who shouldn't vote actually cast a ballot. This happens with, for example, felons as well who are on parole who don't know that they're still not allowed to vote depending on the state law. Occasionally you see votes like that, but votes in large enough numbers to swing the outcome of elections, we really haven't seen good evidence of that.
GROSS: If you're just joining us, my guest is Richard Hasen, who founded the Election Law Blog. He's a professor of law and political science at the University of California, Irvine and author of the book "The Voting Wars." We'll be back after a short break. This is FRESH AIR.
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GROSS: This is FRESH AIR, and if you're just joining us, my guest is Rick Hasen. And he founded the Election Law Blog. He's an election law expert who's a professor of law and political science at UC, Irvine in the School of Law, and he's the author of a couple of books "The Voting Wars" and "Plutocrats United," which is about campaign money.
So are you concerned about hacking the voting system? And I ask that in the light not only of what American security intelligence and intelligence officials assume to be Russia's hacking of democratic databases in emails, but also the big hacking a few days ago of major sites like Netflix and Twitter, Spotify, The New York Times. So can our election system be hacked?
HASEN: Well, let's distinguish between two things. First, the - someone coming in and changing the vote totals, thereby turning the loser into the winner - I don't think that is something that we should be overly concerned about.
GROSS: Why not?
HASEN: In part - well, there are - so far as I know, voting machines themselves that are not connected to the Internet - so it's not as though we have a central repository of all votes. Someone could go in and change the numbers and that's it. Instead, you know, in my book, I criticize our decentralized election system. But one of the benefits of that system is that things are done on the local level.
So ballots are counted on the local level, and then the numbers are sent up to the state. And then the state's able to aggregate them, and we get the state's totals. And so you can go back and you can check. You could check the totals that the election officials give you against paper. Now, there are some places - Pennsylvania's one of those states - that have electronic voting machines without a paper trail. I think that's in terms of voter confidence that's a real problem. I think we have to get rid of those machines.
But those machines are not hooked up to the Internet. So in terms of the vote being hacked in this way, I don't think we're going to see that. And the hacks that we've seen may be coming from Russia in the last few months, not involving the DNC emails, but involving voter - involving election sites. And voter registration sites have really been about voter registration information, so knowing who's on the voting rolls, not anything about - that's going to change the vote totals.
But the DDOS attack that we saw last week really gave me pause about how our elections could be disrupted. So if we had a hack that took the Internet down for effective communication, took down Internet-based telephones or affected traffic signals or affected get out the vote efforts, you could easily imagine that a major attack on the Internet could interfere with our election, could shut down polling places that lack electricity, could make it harder to get out the vote. You could then imagine people aggrieved by what's going on running to court and seeking to have voting extended a certain period of time. And you could see that leading to concerns about the legitimacy of the election.
So while I don't expect the vote totals to be affected by a hack, it's possible if there were a large enough cyberattack against the United States on Election Day that could interfere with the fair administration of the election and raise questions about its legitimacy.
GROSS: Well, I'm certainly hoping that doesn't happen.
HASEN: Yeah. I'm trying to cheer you up here.
GROSS: Yeah, really. This is great. So what kind of trouble are you expecting at the polls?
HASEN: Well, it was maybe two months ago that Donald Trump when he first started talking about a rigged election asked for his supporters to go to his webpage and sign up to be a poll watcher. So people went there and they signed up to be a poll watcher, so far as we can tell, he hasn't organized any efforts to actually have this take place. And so I think an organized effort at voter intimidation coming from the Trump campaign seems very unlikely. What seems more likely is people who are Trump supporters taking matters into their own hands.
A couple of weeks ago, I reposted a picture on Twitter of a guy from Florida who had taken his pickup truck and put some chain link fencing on the back of the pickup truck and claimed it was a cage that he was going to keep all the vote fraudsters in. So you see stuff like that. There was also a report last week in the Guardian about Roger Stone who's a kind of old school, dirty trickster who's supporting Trump. He's supposedly setting up election exit poll efforts in heavily minority cities and is supposedly going to be sending people to the polls to be ferreting out what's going on there. That itself could be an effort intimidation.
We just don't know what's going to materialize on Election Day, but we do know there are a lot of aggrieved people who think the Democrats are going to steal the election. One of the things you may have heard about is the effort to get Trump supporters to all wear red to the polls.
The idea is that if the media shows pictures of all these people wearing red going to the polls supporting Trump, this is going to be some good evidence that if Clinton wins, it was stolen because look at all of these red shirts. The idea that people are going to be marching to the polling place in red-colored shirts just gives me pause about prior efforts to try to intimidate voters and just non-democratic means of taking power.
GROSS: My guest is Richard Hasen, founder of the Election Law Blog and author of the books "The Voting Wars" and "The Plutocrats: Campaign Money, The Supreme Court And The Distortion Of American Elections." We'll talk about new voter I.D. laws and the fear of voter suppression after we take a short break. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross. We're talking about realistic and unrealistic fears about how our voting system will function on Election Day. My guest is Richard Hasen, founder of the Election Law Blog and author of the books "The Voting Wars" and The Plutocrats: Campaign Money, The Supreme Court And The Distortion Of American Elections" (ph). He's also a professor of law and political science at the University of California, Irvine.
So while Donald Trump is saying that the system is rigged against him, a lot of Democrats are concerned that Democratic voters will - many Democratic voters will have their votes suppressed, particularly students, poor people and black and brown people who are more frequently challenged at the polls, especially in places that have voter ID laws. So where are we now in terms of new voter ID laws? How many states have stricter voter ID laws or have new voter ID laws now compared to 2012?
HASEN: Well, this is kind of a moving target. But when I wrote my book in 2012, I took the view that many of the claims of suppression that Democrats made were overblown, and they were also being made for political purposes. But what's happened between 2012 and the current time is that the laws have gotten even stricter. And I do think that now they are likely having an effect.
Indeed, there was a study that recently came out from researchers at the University of California at San Diego that found that voter identification laws are skewing turnout. They're making it harder for especially Latino voters who are eligible to vote to be able to vote in elections. And so it's starting to have an effect, and the courts are starting to respond. And I think if we end up getting a more liberal Supreme Court, we might see the courts being given even more tools to try to limit some of these more egregious efforts to make it harder to register and vote.
GROSS: Which are the states you're watching during the election?
HASEN: Well, in terms of just how voters are treated, I would put Texas at the top of the list and Wisconsin. Wisconsin is a state like Texas where party-line-vote Republicans passed strict voter ID law and passed some other laws that have made it harder to register and vote. There's still litigation in both of these states.
But what happened in Wisconsin was that one of the judges in one of these cases ordered the State Department of Motor Vehicles to take certain steps for people who are trying to get IDs but couldn't get them in time to be able to get the process going and let these people vote in November. And already, the court has had to issue further orders because Wisconsin has not gotten its act together to make sure that people who want to vote, who are eligible to vote but who lack the IDs can get them.
And let me just give you one story that came out in the litigation. It was about a woman who lost the use of her hands who went in to try to start the process to get a valid identification, and they wouldn't let her start that process because she couldn't sign the papers, even though she brought her daughter with her who could sign on her behalf and brought paperwork that allowed her daughter to sign legal documents on her behalf. They also had a - someone born in a German concentration camp who couldn't produce a birth certificate being denied. And so it may not be affecting tens of thousands of voters, these kinds of cases, but you have to ask yourself why is the state making it harder to register and to vote if it's not to prevent voter fraud - that kind of voter fraud is just not really happening - and it's not to promote public confidence because we know that in states that have these laws, voters are no more confident in the process than in states that don't have them.
GROSS: You have concerns about how our whole election system is structured. And I don't mean, like, how the - just how the voting machines work or voter fraud. I mean, your concern with the whole system of 50 states with 50 secretaries of state working with at least 8,000 local boards, including townships and counties, to conduct federal elections. So let's start with the secretaries of state. What are your concerns about the secretaries of state who oversee the elections in each state?
HASEN: Well, I think many of the secretaries of state, most of the secretaries of state are well-meaning individuals who have the public's interest at heart. But when you have a close election and you're playing for one of the teams, it's very hard to remain neutral. And in my book "The Voting Wars," I talk about the Florida 2000 dispute that ended with a famous Supreme Court case of Bush v. Gore.
And one of the things we saw is that state and local election officials tended to make decisions that benefited their political party. So the Republican secretary of state, Katherine Harris, made decision after decision that benefited Republicans in the contest between Al Gore and George W. Bush. And yet Democrats, whether they were on the County Canvassing Board of Palm Beach County deciding whether one of those pregnant chads was a vote for Gore or not or whether it was the attorney general of the state who was issuing opinions siding with Gore, even though that wasn't even in his area. When you have political people involved in making election decisions, you run the risk that they're going to have allegiance to the political party rather than to the integrity of the political system.
GROSS: Are secretaries of state always political appointees?
HASEN: There are some that are political appointees. In fact, Florida is one of the few states that moved from the secretary of state being an elected partisan position to being a person appointed under the direction of the governor. It's actually one of the places where they've made it even more partisan because now this person serves at the pleasure of the governor.
I'll give you one example of something that recently happened in Florida. We just had this big hurricane that came in. The Hurricane Matthew caused up to 1.5 million people to evacuate from Florida right at the time that the voter registration window was closing in Florida. Election officials and the secretary of state and the governor refused to extend the registration period by even a few days. It took the Democrats running to federal court to get an extension and in that period of extension, I think something like 70,000 people the last five days were able to register and vote, who otherwise would not have been able to register.
This is a decision that should not be made by someone like the governor of the state, who I should point out was not only Republican, he is running or is involved with a pro-Trump super PAC. So this is somebody who is a political actor making decisions about who and how the vote is taking place.
GROSS: If you're just joining us, my guest is Rick Hasen, and he's the founder of Election Law Blog. He's a professor of political science and law at the University of California, Irvine Law School and author of the book "The Voting Wars." We're going to take a short break here then we'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR, and we're talking about this election. My guest is Rick Hasen. He founded the Election Law Blog and is the author of the book "The Voting Wars" as well as a book called "Plutocrats United" which is about campaign finance.
Since the election laws vary from state to state and elections are considered a state thing as opposed to a federal thing, people's votes aren't exactly equal. Like, it's harder to vote in some states than it is in other states. It's harder to register in some states than in other states. And I don't know - under the Equal Protection Clause shouldn't we all have the same access to the polls? Shouldn't our right to vote and how our vote is counted be equal? We also use different voting machines from state to state and each state's voting machines, like some states' voting machines are prone to error than other states' voting machines.
HASEN: Yeah. I think making an equal protection argument across states is a difficult thing to do because the Equal Protection Clause applies to a state, right? But there is a path to require more uniformity. We could require a certain uniform ballot to be used in federal elections, all kinds of things if there were the political will to do it that we could do. We could have a system of automatic national voter registration. Every person be registered by the federal government provided a voter ID number, given a voter ID card and be allowed to use a thumbprint to show who you are in the event that you don't have your card. People would be automatically registered when they turned 18 upon graduating high school, and the government would pay all the costs of tracking down what it would take to figure out who is eligible to vote.
That's the kind of system I like to say that has unified Democrats or Republicans. They all hate it. The Republicans don't like the idea of universal voter registration. Democrats don't like the idea of voter I.D. or a national identity card. But I think if we were trying to design a rational election system, we shouldn't have to have all of these battles over who's registered. Everybody who's eligible should be registered. There should be an easy way to make sure that someone has voted and is eligible to vote. And that would be the right way to do things.
But I think there's no way that there's the political will to actually do that right now. And so instead, we need to take smaller steps like making sure that there's transparency, making sure that the voting machines are as accurate as they can be and that we have bipartisan watchers and observers and nonpartisan observers to make sure that everything is done as fairly as possible, along with a backstop role of the courts to make sure that voters are not too burdened without good reason.
GROSS: How do other democracies handle registration and voting?
HASEN: Well, you know, lots of other democracies already have a national identity card. And so it's a lot easier because then you can just use that same card. Most other democracies when they're conducting a national election, it will be conducted not at the local level or the state or province level but it would be conducted as a national election. So if you are in Australia, the ballot for the national offices is going to look exactly the same anywhere you are in the country. And so that's a much more rational system than the system we have here. But, historically, we've given that power to states, and, especially, to localities.
Where I live in Los Angeles County - that's the largest electoral jurisdiction in the country. It's bigger than some states, you know, but we have tiny jurisdictions. We have large jurisdictions. They're using different machines. They have different rules, different rules for recounts and it's just a hodgepodge. And it makes things unnecessarily complicated and especially if there is a problem, it, makes it more complicated because you have to figure out what rules apply, what rules were applied and how to take federal and state law and apply it to thousands of different jurisdictions.
GROSS: Another thing that isn't uniform is who is it that is overseeing the polling and overseeing whether somebody is registered or not on Election Day. It's often volunteers.
GROSS: So what are your thoughts about that, and what are your thoughts about the kind of, you know, requirements or training somebody doing that job should have?
HASEN: I think that for the most part, local election officials are doing a good job, the best job they can under difficult circumstances. One of the difficult circumstances is that they're often inadequately funded. When you think about it, if you're a county or township and got to decide do we put our money into the new ambulance or do we put money into how we run our elections? Often elections end up on the short end.
And right now, for example, I talked about how after 2000, Congress came up with money to replace voting machines. Well, now those voting machines that replaced the ones before 2000 are nearing the end of their useful life. And we have a kind of crisis because these machines are going to be obsolete soon in lots of the country. And yet Congress is not coming forward with any more money to try to replace these machines. And so we may have come 10, 20 years from now that we're going to be voting on the same machines. And we may have similar kinds of problems that we've seen in the past simply because there are not the adequate resources to make sure that we run our election system in an up-to-date and professional way. Relying on volunteers and relying on people who get just a few hours of training might not be enough.
There are some things that are being done that are improving the electoral process. One of the things that Los Angeles is doing - and I've just gotten a little bit involved in this - is they're trying to come up with new voting technology that will be - allow people, for example, to be able to pre-pick their choices on their smartphone for who they want to vote for and then go to the polling place and be able to print out a ballot that would have their choices. And so there are things that can be done to streamline the process to make it better. But there's a lot more that needs to be done.
GROSS: I'm interested in your thoughts on how early voting is going. Early voting is really easy to understand as a convenience because it's so hard for so many people to show up on Election Day during the hours that the polls are open - depends on, you know, if you have young children at home, if you have a job whose hours don't coincide with your ability to get to the polls. At the same time, if you vote early, it leaves open the possibility that something momentous will happen in between the time you voted and the time of the actual election that might have changed the way you cast your vote had you had that option.
HASEN: Well, to begin with, most of the people who vote early are not people who are undecided. They tend to be pretty strong partisans. They're motivated to vote for Trump or Clinton or Gary Johnson or Jill Stein or whoever. And so I think the idea that people are going to change their minds because of a last-minute something, that's probably more of a problem in theory than in practice. I think offering people some form of early voting makes sense. As you said, voting on Election Day, you might have long lines, someone might work, they might have commitments. Being able to do it over the period also takes some of the pressure off election officials who don't have to worry about everyone coming on Election Day.
And so I think it's a good thing. There have been fights between Democrats and Republicans over extending early voting or cutting it back, and this has led to some litigation. There are some states - Pennsylvania is probably at the top of that list, put New York on there, some Northeastern states - that offer no early voting, that offer no absentee balloting for people who don't have a good excuse, like being unable to get to the polling place because of a disability or being out of the country. So there are some places where voting is still very hard. And some of these states - take New York, you know, you've had Democrats in charge for a long time, and yet voting is still more difficult than it needs to be.
GROSS: What impact do you think social media is having on elections?
HASEN: I think that Twitter has actually had a great benefit for election administration. We had a case a few years ago involving a close race in Virginia. And some numbers were coming in and they didn't seem right. And already people were kind of fact checking, checking with election officials, getting information, sharing information. It's much easier to crowdsource potential issues when you have a group of knowledgeable people who are discussing it on Twitter than it used to be in the past. And problems that could have taken days to figure out can sometimes be resolved in hours. I do think that the ability of people to communicate in an almost effortless way and to have communication between election administrators and political scientists and lawyers who are watching all of this can actually help to diffuse some of the more difficult issues that can arise on Election Day when there's often misinformation and confusion about exactly what's going on.
GROSS: You recently posted on your Election Law Blog a chart of laws pertaining to ballot selfies in all 50 states. It never occurred to me that that's an issue, whether or not it's legal to do a selfie in the - you know, behind the curtain in the voting machine.
HASEN: So the issue is whether or not you can take a picture and show how you've actually voted.
GROSS: Take a picture of your ballot?
HASEN: Yes. The question is can you take a picture of your ballot to show how you have voted. And a number of states have laws against this. And now the ACLU and some other organizations have sued to try to get these bands lifted. In fact, Snapchat has filed an amicus brief in one of the suits that went to the United States Court of Appeals for the First Circuit.
So you might think, well, what's the issue? Who cares whether people post these pictures? Here's my concern - when voter fraud does occur or when voter coercion does occur, it tends to occur with absentee ballots. And the it reason occurs with absentee ballots is because you can verify how someone voted, right? So I can pay you $20 for your ballot and vote it in the way that I want. Or you could have a situation of spouses where one spouse could look at the other, make sure that person voted the way that the spouse wants.
When you're in the privacy of the voting booth, that becomes impossible. What the selfie allows is verification of how someone voted. And so I'm concerned that if ballot selfies became a common thing, they could be used to coerce voters and to facilitate vote buying. And that's why I think that if states want to ban them, they should be able to ban them.
The argument on the other side is that it's a First Amendment expressive right to be able to post a picture. And I would say you can post a picture of yourself at the polling place, you could post a picture of yourself voting. But to post a picture of your actual ballot, which has a legal effect, is something that I think states should be able to stop.
GROSS: And so what is the law like now across the 50 states?
HASEN: It's - as with everything in our elections just about, it's a state-by-state issue. And some states allow it and some states don't, some states it's not clear. And in a number of states, including this week in Colorado, you're seeing litigation to try to allow people to be able to post their ballot selfies. And this is something that, hard as it might be to believe, could end up before the United States Supreme Court before too long.
GROSS: Rick Hasen, thank you so much for talking with us.
HASEN: Oh, it's been a pleasure.
GROSS: Rick Hasen is the founder of the Election Law Blog and author of the books "The Voting Wars" and "The Plutocrats: Campaign Money, The Supreme Court, And The Distortion Of American Elections." Our linguist Geoff Nunberg is going to talk about the Trump "Access Hollywood" video and how the media report on crude language when a public figure is caught using it on tape after we take a short break.
And before we take that break, I have an error to correct from yesterday. I got the name wrong of the cable channel where you can see "The Chris Gethard Show." It's the Fusion channel. Sorry about that. This is FRESH AIR.
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