We had the opportunity to catch up with Richard Hasen regarding his recent article published in The New York Times, “Don’t Let Our Democracy Collapse,” focusing on our democracy and the electoral process in the United States. Hasen writes, “the future is scary. Public confidence in the fairness of the election process is already largely driven by who wins and who loses.”
1.) You have an amazing statistic in your NYT op-ed: Election litigation after the 2016 election is up 23 percent compared to post-2012. What do you attribute that to? Is it a consequence of the new voting restrictions moving through so many state legislatures?
Richard Hasen: The 23 percent statistic comes from my new study of the “voting wars” in the 2016 election. As I explained in the New York Times piece, I think much of the increase is due to the rise in red state election law, where states with Republican legislatures have passed laws making it harder to register and to vote, and this prompts litigation from Democrats and Voting Rights groups. Also, the Supreme Court’s 2008 decision in Crawford v. Marion County Election Board (giving a green light to Indiana’s voter id laws) and its 2013 decision in Shelby County v. Holder (killing a key provision of the Voting Rights Act) have prompted both more legislation and more litigation in red states.
2.) How concerned should we be for the health of democracy when core issues of voting seem to be under such constant litigation?
Richard Hasen: Litigation alone does not mean the democracy is unhealthy, but I think the nature of much of this litigation shows how divided we are as a country about the protection of voting rights. And that’s a big concern. If we had national, nonpartisan election administration which insures that all eligible voters, but only eligible voters, can easily register and cast a ballot which would be fairly and accurately counted, much of this contentious litigation would go away.
3.) What do you think the endgame is of the Trump/Pence commission on voter integrity? Is it some kind of national voter ID? Is it, again, dangerous for democracy to have myths about voter fraud bandied about in such a way?
Richard Hasen: As I indicated in this Slate piece, I expect the commission to issue a report. “The report will likely conclude that even if there is no evidence of actual voter fraud, the potential for voter fraud and noncitizen voting is there because of inaccurate rolls. Accordingly, they will argue it is necessary to roll back the 1993 National Voter Registration Act (or “motor voter” law)—a law which folks like Kobach hate because among other things it requires states to offer voter registration at public service agencies. They’ll want federal law to do what federal courts have so far forbidden Kobach to do: Require people to produce documentary proof of citizenship before registering to vote. In other words, show us your papers or you can’t register.”
4.) What can save the system and put an end to this? If not partisan judges, partisan legislatures, cynical politicians, a divided populace...where are we supposed to look?
Richard Hasen: We are in a tough spot right now. National, nonpartisan election administration is not on the way any time soon. The greatest immediate threat to our election is foreign interference from cyber hacking and otherwise. I hope that nongovernmental organizations can work with state and local election officials to look for ways to secure the integrity of our electoral process, and look for other areas of agreement, like online voter registration. We also need upgrades to our voting equipment and Congress to fund it.
5.) Do you have any sense of where Justice Kennedy's mindset could be, heading into Gill v. Whitford? He asked for this case, in many ways -- but after signing onto the Alito dissent in Harris v. Cooper (which suggested partisan gerrymandering was part of politics as usual) and then siding with the conservatives to stay with the Wisconsin maps, he does not seem to be an automatic here. What do you think he's looking for?
Richard Hasen: I don’t know what Justice Kennedy will do. I indicated in this piece in The Atlantic that I expect Justice Kennedy to be shown many standards that can be used to police gerrymandering. The question is if he wants to do so before he retires from the Court. I would caution that there’s no good indication that Justice Kennedy is there. This case came up on mandatory jurisdiction, which means the Court feels compelled to take these cases. And the stay issued to stop a new round of redistricting is some evidence that a majority may think Wisconsin is likely to win. We may have a better indication after the October 3 arguments in the case.
Richard L. Hasen is a professor of law and political science at the University of California, Irvine, and the author of “The Voting Wars: From Florida 2000 to the Next Election Meltdown.”