TERRY GROSS, HOST:
I'm Terry Gross. Looking ahead to Election Day, what if the loser of the presidential election doesn't concede? Can we still rely on the peaceful transition of power after hard fought but fair elections? What if Russia or another adversary hacks into an American city's electric grid on Election Day, preventing people from voting?
These are just some of the tough issues that my guest, Richard Hasen, addresses in his new book, "Election Meltdown: Dirty Tricks, Distrust, And The Threat To American Democracy." It's all about the stresses in our election system, from voting machines to voter suppression, attempts to politically game the system, domestic and foreign disinformation and hacking. Hasen is a professor of law and political science at the University of California, Irvine, and founder of the Election Law Blog. His previous book was titled "The Voting Wars."
Rick Hasen, welcome back to FRESH AIR. So you know, you write the losers of November's election may not concede, and their voters might not either. What are some of the scenarios you're envisioning?
RICHARD HASEN: Well, lots of people think about the idea of Donald Trump not leaving office and, you know, having to be pulled out by the military. And I think that that's just one of a number of ways in which we could have a problem. You can imagine another scenario in which Trump narrowly wins in a state like Florida, but there's a widespread belief among Democrats that he wins a narrow election because the Florida Legislature blocked implementation of a law that was passed by voters a few years ago that was meant to reenfranchise felons.
Or another scenario, as you can imagine, that there's some kind of external shock to our system. It could be some kind of terrorist attack or some kind of cyberattack that disrupts voting. We don't have good procedures for figuring out what to do when that happens, and that could lead to one or the other side feeling that the election was not conducted fairly. There's lots of ways that things could go south.
GROSS: If Donald Trump is still in office and if he loses, are you concerned about him lying? For example, after the 2016 election, he said Hillary Clinton got 3 million fraudulent votes. There's no evidence at all that that happened. He could claim something like that again, but this time around, he'd be president but would have been voted out of office. So, like, what happens then?
HASEN: Well, I think that this is one of the real nightmare scenarios, and that's because we've seen that Trump has managed to convince his supporters of things that are demonstrably untrue. Not only has he made false claims about voter fraud being rampant, he's also lied, for example, about what he told Lester Holt in an interview about why he fired James Comey.
He's lied about so many things, you know, that it wouldn't be surprising for him to lie about the results of the election. If the election is very close - if, for example, he's leading on election night in a key state, and the results end up being reversed as more votes are counted in the days passed, you could easily see him claiming victory and saying that he won the election and that any votes that came in afterwards were fraudulent votes. He made those kinds of claims in 2018 involving a close Senate race in Florida. So it's certainly possible.
GROSS: You write that the Obama administration feared that Trump wouldn't accept a Hillary Clinton victory if Hillary Clinton won, and so the Obama administration came up with a contingency plan. Would you describe the plan?
HASEN: Well, so the plan was going to be to trot out, I would say, responsible, moderate Republicans - think Colin Powell - and try and bring them out and try and say, you know, everyone needs to just accept that the results were legitimate and to move on. And that may have been a plausible plan at the time, but it's hard to imagine that President Trump, who now commands, you know, over 90% of the Republican Party support - those who don't like Trump have left the Republican Party, but of those who remain, they're strong supporters - are they going to listen to Colin Powell?
When I brought this up with people, they've said, well, maybe this time around, it would be George W. Bush who would be trotted out. It's just hard to think of who these, you know, beyond-politics luminaries are who could convince people, if Trump is claiming otherwise, that he really needs to leave office and to transfer power peacefully to a Democratic opponent.
GROSS: The last time there was a contested election, in 2000, it was settled in the Supreme Court in favor of George W. Bush. The voting recount was halted in Florida. Sandra Day O'Connor, who was a Supreme Court justice at the time and voted in favor of stopping the recount in Florida and thereby handing the victory to George W. Bush, said she later regretted that vote. And you point out that the Supreme Court seems so politicized now. If an election decision was settled by the Supreme Court, would the American public accept it?
HASEN: So I think that there are reasons to believe that if the Supreme Court on a 5-to-4 vote sides with Trump in a disputed election, the Democrats would have a hard time accepting it. And I think that's true for two reasons. First, back in 2000, when we had Bush vs. Gore and the court divided 5 to 4 between liberals and conservatives, among those liberals were two Republican-appointed justices, John Paul Stevens and David Souter.
This time around, all the conservatives on the court were appointed by Republican presidents. All the liberals on the court were appointed by Democratic presidents. And so I think we tend more now than ever to think of the Supreme Court as a partisan institution, not just one that is ideologically divided but divided along party lines.
And second, and more specifically, you remember that President Obama nominated Merrick Garland to replace Justice Antonin Scalia, who passed away while President Obama was in office, and Mitch McConnell denied a hearing for Merrick Garland. Many people on the Democratic side believe that Neil Gorsuch, who ended up taking that seat, was not entitled to that seat, that it was a stolen seat. And so if the deciding vote is cast by Neil Gorsuch, then that's an indication that Mitch McConnell has, in effect, stolen the presidential election after stealing the Supreme Court seat. I think that's how many Democrats would look at things if we came down to the Supreme Court.
Back in 2000, after the disputed election, Justice Scalia was famous for saying that Democrats should get over it. And in fact, the country pretty much did. People are still sore about how Bush vs. Gore ended up coming out, people who remember that decision, but the country pretty much moved on. And now there's, you know, polling indicating that views of the Supreme Court really differ by party, and I think, increasingly, as the Supreme Court issues more conservative decisions, Democrats are going to see its legitimacy as more and more suspect.
GROSS: What do you think are some of the realistic concerns about the election being fair, the presidential election that's coming up?
HASEN: Well, so there's the issue of perception and the issue of reality. You know, there are certain kinds of external things that could be done to try to manipulate public opinion, as we saw the Russians do in the 2016 election when it came to social media, as well as the leaking of materials. So, you know, what's going to happen if Joe Biden is the nominee and all of a sudden Burisma documents start appearing? Some of those documents, as we know from a recent French election, that might be leaked could include false documents.
So these are the kind of external threats that could cause people to believe that the election was not conducted fairly. There could be machine breakdowns. There's the transition to new voting rules and new voting machines. That could cause some problems at the polling places. That could cause some disputes about how to deal with a recount. And then there's all of the talk about voter fraud and voter suppression. There - this is going to be the first election since the 1980s where the Republican National Committee is not going to be subject to a court order, a consent decree, which barred the party from engaging in certain so-called ballot security measures at polling places. This means that in this election, President Trump, as he tried to do in the 2016 election, could organize people to engage in so-called poll watching activities in Democratic and minority areas. What we saw in the 1980s, before the consent decree, were off-duty police officers in uniform patrolling polling places.
I mean, there's all kinds of things that could happen. I don't know which, if any, of these are going to happen. But just like with a nuclear meltdown at a power plant, even if there's a very small risk that something terrible could happen, you need to have contingency plans. You need to do things to try to minimize the chances that something terrible is going to happen.
GROSS: You know, the subtitle of your book "Election Meltdown" includes dirty tricks. And I'm wondering where the impeachment charges fit for you in terms of your concerns about the presidential election. I mean, impeachment is based on the charge that Trump tried to withhold military aid to Ukraine, which it needs to defend itself against the Russians - to withhold the aid unless Ukraine's president agreed to investigate Joe Biden, Trump's political rival. So does that count you as a dirty trick if, you know - if in fact it's true?
HASEN: Yeah. I think there are two lessons to be learned from impeachment for the 2020 election. One is what you've alluded to, which is that the president has repeatedly invited foreign interference, right? This wasn't the first time that he invited foreign interference. He asked the Russians to hack into Hillary Clinton's server. He, even when he was being questioned early on in the Ukraine story about the process, invited China to leak dirt on Joe Biden. So one concern is about the president not only taking important steps to prevent foreign interference in the elections but also to encourage it.
But the other lesson that I've learned from watching impeachment is that you have a number of Republican senators who are willing to simply lie about what the facts show. They're willing to lie about what are undisputed facts about what the president said, when he said it, about what he was trying to do in the Ukraine. And so to the extent that we expect that people are going to engage in hard fought battles but are going to do so honestly, I think the impeachment shows that there are some people who are willing to lie about the basic facts if that's going to give them political advantage. And that, to me, is just as concerning as the attempt to get the Ukrainians to manufacturer or produce dirt on a political rival of the president's.
GROSS: Do you think President Trump has stood in the way of protecting elections from foreign interference? His chief of staff, Mick Mulvaney, told Kirstjen Nielsen, when she was the head of the Department of Homeland Security, not to bring up foreign interference in Trump's presence because Trump equates that with questioning the legitimacy of his own presidential victory.
HASEN: Yeah, I'm very concerned that the president is not leading on this issue. He has invited interference from the Ukrainians, from the Russians, from the Chinese. I mean, that - if that's not sending a signal that more interference is allowed, I'm not sure what would be. He's been so weak on this.
One of the examples I give in the book of a nightmare scenario involves a hack by the Russians of the power grid in a Democratic city like Detroit or Milwaukee in a swing state, which could happen on Election Day and could affect the vote in that state, which could affect the national vote totals. This should be considered an act of war. And we would want a president out there who is being actively warning the Russians and others, the Iranians and anyone else that might try to interfere in our elections, that it is completely unacceptable and that American elections are for Americans to decide. Not only do we not have that leadership from the president, we have the president actively undermining that message.
And so while I think there are many good people in the federal government who are working on issues of election cybersecurity and working on other issues, the leadership from the top is really problematic. And the idea that Mick Mulvaney had to kind of keep this information from the president so he wouldn't get agitated about it, I think that's a really sorry state of affairs.
GROSS: Let me reintroduce you here. If you're just joining us, my guest is Richard Hasen. He's the author of the new book "Election Meltdown: Dirty Tricks, Distrust, And The Threat To American Democracy." And he founded the Election Law Blog and is a professor of law and political science at the University of California, Irvine. We'll be right back after a break. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Richard Hasen. He's the author of the new book "Election Meltdown: Dirty Tricks, Distrust, And The Threat To American Democracy." He's a professor of law and political science at the University of California, Irvine law school, and he's the founder of the Election Law Blog.
You know, we were talking about the possibility of a contested election. You point out there's a good chance we will not know the results of the presidential election on election night. Tell us one of the major reasons why we might not know that.
HASEN: Well, remember that we don't conduct a single election on election day; we actually conduct something like 9,000 elections. We have a really decentralized system, and so votes have to be counted in counties or subcounty levels and then aggregated at the state level to finally produce the numbers that will tell us who has won each state, which then is relevant for the Electoral College.
Well, there have been some shifts in how some of the states are counting their votes. I think most notably here I would look to Pennsylvania. Pennsylvania, until this most recent election cycle, did not allow people to vote by absentee ballot without an excuse - you know, for example, you're ill, or you're out of the country doing military service. Now anyone can get an absentee ballot. That's the way it is in lots of states. But it wasn't that way in Pennsylvania.
GROSS: So in Pennsylvania, you don't know - you no longer have to give a reason. You could just say, I want an absentee ballot.
HASEN: That's right. That's how it's been in California for as long as I've been voting here. That's - you know, some states have all vote by mail. But in Pennsylvania and in some other states, that was not really an option unless you had an excuse, and now you can do that. But it takes a while to count absentee ballots, takes a while to process them. And you have to, for example, make sure that the person who has submitted the absentee ballot, that their signatures match, or there's another way of verifying their identity, that they've filled out their ballot correctly before it can be counted.
You may remember in 2018, there were a number of congressional races in Orange County, Calif., where the Republicans were ahead. And then over the weeks that followed, Democrats eventually took the lead. Paul Ryan, the former speaker of the House, called this bizarre and suggested that there was something nefarious going on. The president made similar kinds of comments. And yet the problem was just one of administration. It takes a long time to count these absentee ballots, much longer than it takes to count ballots that are cast on Election Day, which are cast on machines that can pretty quickly aggregate those votes.
And so it could well be, as a story in The Philadelphia Inquirer recently suggested, that President Trump could be ahead in Pennsylvania on election night, but there could be enough outstanding ballots, especially from big cities like Philadelphia, where it's going to take a day or two or longer before the final vote counts come in. And those late-counting ballots, at least as we've seen in recent years, tend to shift towards Democrats. And we saw in 2018, in the contested race between the incumbent Florida U.S. Senator Bill Nelson against Rick Scott, that President Trump criticized ballots that were counted after Election Day. He said, must go with election night, which was kind of a crazy thing to say because saying that would disenfranchise a lot of military voters, whose ballots may not arrive by Election Day.
So I certainly think that if President Trump is ahead on election night in a key state like Pennsylvania, he's going to say, stop the counting. I've won. All the other ballots are illegitimate. At least that's the pattern that we saw in 2018.
GROSS: You referred to this earlier - you know, a lot of people are concerned about the voting machines being hacked or registration rolls being hacked. You're also concerned about Election Day being hacked by Russia or another foreign adversary, for instance, hacking the electric grid of a big city. There's no - nobody has contingency plans for that, do they?
HASEN: Well, you know, there are some contingency plans. I asked the secretary of state of Michigan, Jocelyn Benson, about this, you know, this nightmare scenario. And she said, you know, polling places have paper ballots, provisional ballots that could be used in the event of an emergency. But I think, you know, if there's a citywide blackout - right? - that means that lots of people are not getting to the polling place, right? So even if everyone who got to the polling place got a provisional ballot, how many people - if the, you know, the buses and trains are not running and the lights are out, how many people are not going to vote? I mean, it would just be something that certainly would affect the kind of turnout you'd see in a city on Election Day.
GROSS: I mean, everything would be mayhem if that happened.
HASEN: Right. And I think, you know, what we don't have are good rules for dealing with either a terrorist attack or a natural disaster that could affect an election outcome in a presidential election. You know, it's much easier to rerun an election or take some other kind of remedial measure when you're talking about a local election. You may remember back a while ago, you had the Al Franken-Norm Coleman race, where it was very close in Minnesota. And they did a very careful, meticulous recount that I think a lot of people think was kind of the gold standard. It took nine months, and there was no senator from Minnesota in that seat for nine months. We can't tolerate that for a U.S. president.
So, you know, we're really in a uniquely bad situation if you have a state that is crucial to the Electoral College that faces something like either a natural disaster or some kind of cyberattack or terrorist attack on Election Day. And so I really fear that. And, you know, it's the kind of thing that really requires preparation well before Election Day. It requires kind of cybersecurity measures, and it requires, I think, a president sending a signal that this kind of behavior from another country would be unacceptable.
GROSS: Are you just being a catastrophist or are these concerns we really ought to be taking seriously right now?
HASEN: Right. So one reaction to calling a book "Election Meltdown" is that it's a little alarmist, but I'm going to own that and say, yes, I'm sounding the alarm. Even if there's a small risk of this happening, it's still - now 20 years after Bush versus Gore, we haven't learned our lesson. You know, an election meltdown is a real possibility, even if it's a small one. We really need to take precautions.
There's something called the election administrator's prayer - Lord, let this election not be close - because when it gets close, you start looking at all of the problems that can occur. And so it's a low-probability event because not every election is close, but this election could well be close, given how polarized we are, given how evenly divided we seem to be and given how hot everything is right now surrounding our election.
GROSS: My guest is Richard Hasen, author of the new book "Election Meltdown: Dirty Tricks, Distrust, And The Threat To American Democracy." He's a professor at the University of California, Irvine law school and founder of the Election Law Blog. We'll talk more after a break, and Ken Tucker will review a new album by singer-songwriter Andy Shauf. The songs tell a story. This is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Richard Hasen, author of the new book "Election Meltdown: Dirty Tricks, Distrust And The Threat To American Democracy." It's all about the stresses on our election system from voting machines to voter suppression, attempts to politically game the system, domestic and foreign disinformation and hacking. Hasen is a professor of law and political science at the University of California, Irvine and founder of the Election Law Blog.
Because our elections are decentralized and every state and, you know, counties have their own rules and their own people overseeing the election and their own voting booths, you point out that also means that there's thousands of different opportunities and places to hack. That it actually - the decentralized - I mean, I guess you could argue either side, you know, that the decentralized election system leaves us less or leaves us more vulnerable to hacking. Which side do you think is true?
HASEN: Well, if we had a popular vote election - right? - so we were choosing the president by whoever gets the large number of popular votes - well, then decentralization might make sense, because then if you have some kind of hack or problem in one place, it wouldn't be enough to sway the outcome. But we don't vote like that. We vote with the Electoral College.
And so if you think about the fact that in Wisconsin, Pennsylvania and Michigan, it was something like 80,000 votes that was the difference between Clinton and Trump, you know, combined across those three states, you would only need to hack into one of the most vulnerable places to potentially change the outcome of that election.
GROSS: What are the most vulnerable parts of our electoral system to hacking?
HASEN: Well, one of the things we saw in 2016 was that the Russians sniffed around voter registration databases in lots and lots of states. And, you know, we have not been given all the information. But there was at least some attempts to change some of the records, and those attempts were caught. Messing with the voter registration database could be a real problem if, for example, people go to the polling place, they're checked in through what's called an electronic poll book, where people - the poll workers look up the names of the people to make sure that they're eligible to vote - and their names don't appear.
I mean, this could cause all kinds of problems. But there's also the concern about voting machines themselves. And I mentioned that Pennsylvania's got new rules on absentee ballots. They're also going to be one of a number of states where at least in part of the state, they're rolling out new voting machines. And there's a whole new set of voting technology that's out there now. Some of these - some of the new technology uses barcodes to print out on a piece of paper the choices of the candidate.
And there's all kinds of disputes now among computer scientists, election integrity advocates and others over whether these new so-called BMD machines are secure enough for counting. One issue is, you know, if you have a barcode on there or some QR code, it's not something a human being can read, right? It's just a series of lines. And you don't know who that vote is for. Well, the candidates' choices are also going to be printed on that ballot. But one question is going to be, are people going to check to make sure that those ballots printed the names correctly? And in the event of a recount, what would control the barcode or the names on the ballot?
And given how much suspicion there is now about hacking and about the lack of safeguards across all of technology, I think a lot of people are worried that if we're going to rely on barcodes that are going to be counted by machines that are produced by companies that are, for the most part, you know, private, for-profit companies, that there's not enough security in that kind of system when it comes to counting votes. That's why many people have called for hand-marked paper ballots. You know, fill out the scantron like you're going to take the SAT test - that that is the best form of - the best format for voting because then you can look and see whether someone bubbled in that circle for Trump or for his Democratic opponent.
GROSS: A lot of people are concerned about voter suppression in this election. And what's one of the most important new developments in voter suppression?
HASEN: There are two places where it might be made harder to participate in the process. One is through onerous voter registration rules, and the other is through rules that apply to counting your vote on Election Day. And we've seen attempts to try to make both of those more difficult. We've seen, for example, in the state of Kansas, they passed a law that said that if you wanted to register to vote, you had to provide documentary proof of citizenship. This kind of show-me-your-papers law says that if you want to vote, you have to come up with a naturalization certificate or a birth certificate. That's a pretty onerous standard.
And, in fact, we know that in the state of Kansas, before a federal court put it on hold, 30,000 people had had their voter registration suspended because they weren't able or hadn't had the chance to produce that piece of paper. And, you know, that was supposedly a step that was necessary to prevent noncitizen voting. But yet we know from a series of cases and a controversy that I describe in "Election Meltdown" that the incidents of noncitizen voting is very, very small.
So one place is voter registration. The other is voting on Election Day. And we hear a lot about voter identification laws, right? You have to show your ID at the polling place. A lot of the social science literature shows that voter ID does not seem to affect turnout very much, or at least not as much as many Democrats tend to believe. I think that's for a few reasons. No. 1 - the people without ID are probably less likely to vote just because someone without ID is likely to be at the lower end of the socioeconomic spectrum, and they're, therefore, also unlikely to vote but also because there were lots of measures taken to try to ensure that those who don't have the IDs get the IDs in time for Election Day.
And court suits have softened these laws. And so in many states, because of a court order, if you don't have an ID, you might be able to vote by writing an affidavit showing, you know - saying this is who I am. And under penalty of perjury, I'm allowed to vote. So we have these kinds of procedures in place. One of the things that we've seen, though, with voter ID laws is there's lots and lots of confusion, which itself can be demobilizing. So some people might not be showing up at the polls because they think they don't have the right kind of ID but they actually do. That may be just as important, that kind of effect of the law - people thinking that they can't comply with the law or people afraid to sign an affidavit under penalty of perjury. So lots of the ways that these things are implemented really affects the elections.
GROSS: Let's talk about what's happening in Florida. Florida is a key state in the presidential election. A recent voter initiative says that people who are ex-felons can now vote, and that enfranchises, like, tens of thousands of people.
HASEN: I think it's up to a million. But I would have to look...
GROSS: OK, OK.
HASEN: ...The number up.
GROSS: Right, so that's a very significant number in a state like Florida, which is key. It's a key state in the presidential election. But the right of ex-felons to vote has been subsequently restricted. Would you explain the restriction?
HASEN: Sure. So the question is whether under Amendment IV, which passed by - on a bipartisan basis by Florida voters - Republicans and Democrats supported it. The question is, what do you have to do in order to show that you've completed your sentence? It might not just be that you've finished serving any jail time and probation. But what if you have fines? And it turns out that there's no single repository of information in Florida as to whether if you were a felon, you still had to pay fines or fees, court costs, things like that. And both the Florida Legislature and now the Florida governor and the Florida Supreme Court have all gotten involved to try to say that unless you've paid all of these fines, you cannot be eligible to cast a ballot. And you have to fill out a form when you are an ex-felon, under penalty of perjury, saying, I've got no more fines or fees. And yet, there's no way to actually know if that's true. You might not know of all of the fines or fees that could be against you. And so there is litigation in both state and federal court to try to make sure that this Amendment IV is actually going to be implemented in a way that will allow ex-felons who've completed their sentences to be able to register and to vote on Election Day in November.
GROSS: The way you're describing it, it would be risky to vote.
HASEN: Well, that's right because if you - you might think that you've paid all your fees and fines, but there's no way you can go to a state database and confirm that as you sign under penalty of perjury that you don't have any. But maybe you owe a $20 court fee from 10 years ago. You know, you could be putting yourself in legal jeopardy. And so that's why the federal lawsuit is trying to have this affidavit requirement thrown out, and there'd be some changes so that people will not get themselves caught up in the legal system again for trying to exercise their constitutional right to vote.
GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is Richard Hasen. He's the author of the new book "Election Meltdown: Dirty Tricks, Distrust, And The Threat To American Democracy." He's a professor of law and political science at the University of California, Irvine law school. We'll be right back. 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. He's the author of the new book "Election Meltdown: Dirty Tricks, Distrust, And The Threat To American Democracy." He's also the founder of the Election Law Blog, and he's written extensively about election security and election law.
Let's talk about disinformation in the election. We saw a lot of that, certainly, in the 2016 presidential election on social media. You point out in your book that disinformation on social media is not illegal because it doesn't come under campaign finance law. So what does that lead you to think about if we need any kind of legislation that outlaws intentional disinformation to sway an election?
HASEN: So if you think about what the Russians did in 2016, much of what they did did not violate campaign finance law because, as you said, they didn't say explicitly - at least most of the time - vote for or vote against a candidate. There were a few vote for Jill Stein ads. But a lot of it was Hillary Clinton is a Satan, which is not a call for her to be defeated in office - right? - because it has to be more explicit than that.
A lot of it was just provoking people on issues from immigration to gay rights to race relations in the country. One of the biggest sites where they put some of their greatest energy was into a blacktivist (ph) website which was trying to demobilize African American voters and convince them that Hillary Clinton didn't care about their interests. You should just stay home, right? - this kind of demobilizing activity.
Well, what we saw by 2017 is that we didn't need the Russians to engage in this activity. We saw kind of parallel activity going on in the 2017 U.S. Senate race. This was to replace Jeff Sessions, who became the attorney general. We saw forces supporting the Democrat Doug Jones, but not Jones himself, against Roy Moore, the controversial Republican candidate, trying to suppress moderate Republican votes, for example, by putting out disinformation that a group of fundamentalist Baptists supported the banning of alcohol in the state of Alabama, right? And, you know - and they supported Roy Moore. And, you know, the idea was, convince these moderate Republicans to stay home.
So much of this is not even misinformation. A lot of it is just trying to rile people up, get people upset, demobilize people. And I think it's really hard to think about what kind of law we could have that could be passed to deal with misinformation. You know, candidates, politicians, political entities have been lying for as long as we've had elections. And would you really want to trust, for example, President Trump to decide what counts as fake news, right? Do we want to give this to a federal agency? I think because of the First Amendment, you know, we really want to have a rigorous and full-throated debate about the issues of the day. And when you start having the government deciding what's true and what's not true, that's problematic. And so I don't think, at least in terms of domestic misinformation, domestic lying, that, really, we can do much about it, aside from when the statements are defamatory or they're statements about how the election itself is run. I think you could have a federal law, for example, that would ban people from making false statements about where to vote, how to vote, when to vote - those kinds of things.
GROSS: What are two or three of the major changes you'd like to see in our election system?
HASEN: Well, if we're talking long term, I think I would move to national elections. If you look at the way most countries - advanced democracies - think Australia, U.K., Canada - countries that we kind of think of as our peer countries. If you think those countries, they all have national voting systems, where civil servants who are not partisans are running the election. The voting machinery is the same if you go anywhere in the country. Things are much more streamlined, and they're simpler. I would do that. I would also have universal voter registration; so every voter, when she turns 18, gets registered to vote and gets a unique voter registration number that stays with her for her entire life - I think that kind of system. And I would have a national voter ID card, where people could use their thumbprint, if they prefer, rather than their ID in order to vote.
I mean, I would just have a totally different system. It would be much more centralized. It would be much less politicized than the system we have now. That's long-term. I wrote about that back in 2012 in "The Voting Wars," a book we talked about some time ago. In this book, "Election Meltdown," I'm concerned about the next 10 months. You know, I've got some long-term solutions, but the question really is, what can we do to ensure that American democracy can survive the 2020 elections? I'm thinking about triage right now, not long-term solutions.
GROSS: So tell us what your triage issues are.
HASEN: Well, so, you know, it depends on who you're talking about. So I'd say No. 1, we need to - the media needs to have an important role in educating people about vote counting, in not calling elections early, not calling them prematurely until they're convinced that enough votes have been counted; in educating voters about how long the process takes. I think the American public is going to be really sick and tired of the 2020 election by the time we get to November, and they're going to want an instant result. And yet, people need to be prepared that it's going to take a week or two. So that's, I think, at the top of the list for the news media.
At the top of the list for state and local officials, it's finding those weak links. It's having contingency plans that are in place to make sure that the election is going to be smoothly run, especially in swing states, especially if there are internal or external forces that try to disrupt the election - and having plans for post-Election Day, for giving out clear, transparent information about how the vote-counting process is going to take place. So I think that's, you know, really a step that election administration need to take.
And I'd say third, behind the scenes, there needs to be a tremendous amount of cybersecurity work to make sure that we don't have the kinds of disruptive hacks of our infrastructure or of our voting technology that could affect the outcome of election or, just as important, cause people to think that the election outcome has been manipulated even if it hasn't.
GROSS: So one of the things I worry about - and tell me if you think this is worth being concerned about. Say there's an election. A winner is declared. It seems to be an accurate count. We find out a week or a month or a couple of months later that there were a significant number of votes that were uncounted or that there was a hack that distorted the vote count. What do we do then? Do we overrule the election if the new results contradict the original results?
HASEN: Well, so you may remember that in 2018, there was a dispute over the 9th Congressional District race in North Carolina, where there was significant evidence of ballot tampering with absentee ballots. And in that case, the election board refused to accept the results and required a new election. And that new election took place some months later. So if we're dealing with a state or local election, we do have procedures in place in lots of states, when an election is marred by fraud or some kind of, you know, major problem, for having a redo of an election. The problem is on a presidential scale, it's much more difficult.
GROSS: When you started specializing in election law, did you foresee the lack of confidence in the election system that you're seeing today?
HASEN: Well, not only did I not see that when I started in the mid-1990s - I recall writing a blog post in January of 2009, when President Obama was inaugurated, taking over from President Bush - George W. Bush. And I remarked in the blog post about how I thought it was just a great testament to American democracy that nobody gave any thought to the fact that here you had a conservative Republican handing power over to a liberal Democrat. I mean, Bush and Obama were very different from each other. And yet, Bush showed tremendous grace in handing over power. You know, there were good wishes. It was - you know, I said, something that we take for granted and that we should not take for granted.
And I think that was 2009, right? So it's about a decade later, and things have deteriorated so much. Part of that is President Trump, but it's not only President Trump. It's the greater polarization. It's the external meddling. It's the fact that, you know, 20 years after Bush vs. Gore, we still haven't gotten our act together as a country to have a rational system for running what is, you know, kind of the biggest operation - aside from the going to war or conducting the census - that we do as a country.
GROSS: Rick Hasen, thank you so much for coming back to FRESH AIR.
HASEN: It's been a pleasure.
GROSS: Richard Hasen is the author of the new book "Election Meltdown." After we take a short break, Ken Tucker will review a new album of songs that plays like a short story. This is FRESH AIR.
(SOUNDBITE OF GEORGE FENTON SONG "IMPROMPTU NO. 3 IN G-FLAT MAJOR, OP. 90, D 899")