Georgia's new election law is a piece of writing, like the Constitution or the Bible, about which everyone has an opinion but few have actually read.
Is the United States on the verge of an “election meltdown”? In his book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, Professor Richard Hasen, a leading legal scholar in election law, argues that American democracy faces a grave threat from a combination of four factors: voter suppression, administrative incompetence, dirty tricks, and incendiary rhetoric that causes Americans to doubt the honesty of elections. “We have to act now,” he warns, lest the next close election “tear us apart.”
We should, of course, try to prevent and mitigate each of these things. But none of these four horsemen of the electoral apocalypse are exactly new, and there is substantial reason to believe that each is less of a threat than in the past. There are fewer barriers to voting than in the past, yet there is still tremendous pressure to make voting still easier through mail voting, election-day voter registration, legalization of “ballot harvesting,” and early voting. Election administration is more professional than at any time in our nation’s history. Elections are almost certainly less prone to fraud and dirty tricks than in the past—long gone are the days when Lyndon Johnson could steal a U.S. Senate election with 200 late-discovered votes cast in a single precinct by voters signing in alphabetical order. And fiery rhetoric about fraud and corruption is nothing new.
Unfortunately, that sense of perspective is lacking in Election Meltdown, and the book may tell us more about the meltdown of the liberal mind than the meltdown of our elections.
Professor Hasen clearly sees the greatest threat to American democracy as “voter suppression.” This is the subject of the first and longest chapter in Meltdown, and it permeates the entire book. Almost the entirety of the chapter is devoted to criticism of laws requiring voters to present identification at the polls—and to criticism of those who promote such laws as necessary to fight voter fraud. Hasen convincingly argues that voter ID laws are simply not a very useful tool for combatting real-time fraud at the polling place and that such fraud is rare in any event.
But if voter ID laws don’t prevent much fraud, Hasen provides no reason to believe that voter ID laws inhibit much voting, either. He has harsh words for the Supreme Court’s 2008 decision in Crawford v. Marion County Election Board, which upheld Indiana’s voter ID law, calling it “a terrible precedent,” but he never shows that it has led to “voter suppression.”
Indeed, since Indiana’s law took effect in 2005, both voter registration and voter turnout have gone up, not down. The district court, which heard the evidence in Crawford, noted that, “Plaintiffs. . . have not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of [the voter ID law] or who will have his or her right to vote unduly burdened by its requirements.”
As to the claim that ID laws discriminate against African-American voters, the district court in Crawford found that, “Plaintiffs have not presented statistical evidence of any groups who will be severely or disproportionately burdened.” A review of voter turnout in the 2012 election by the liberal “fact-checker” Politifact found that, in 2012, African-American turnout exceeded white turnout in three of the four states with the strictest voter ID laws (Georgia, Indiana, and Tennessee) and was statistically indifferent in the fourth (Kansas).
Instead of addressing such inconvenient facts, Professor Hasen switches gears: “Courts should. . . require states to prove that their restrictive laws serve a real interest.” That may be, but that is a different argument than the one we were promised: the incendiary charge that “voter suppression” is widespread in the United States.
Beyond voter ID laws, Hasen rolls into the category of “suppression” policies including restrictions on voting by convicted felons, requirements for advance voter registration, and a reduction in early voting—a practice virtually unheard of as recently as 20 years ago—from 17 days to 10. These may or may not be good policies (there is evidence that early voting laws actually lower voter turnout by reducing the effectiveness of election-day turnout operations and eroding civic stimulation to vote), but it is certainly a stretch to call them “voter suppression.” To millions of Americans, they are common-sense safeguards of democracy.
Of course, there are some people who might vote if given 17 days to vote early, but not if given only 10. It is probable that voter ID laws have prevented or discouraged a small number of people from voting. Higher African-American turnout in 2012 may have been an anomaly driven by the desire to support the re-election of the nation’s first African-American president. But you would never know from reading Meltdown about the actual facts in Crawford or about data regarding turnout and early voting that cut against the “voter suppression” narrative. Moreover, it is never conceded that citizens may have legitimate reasons for favoring such things as denying felons the right to vote or opposing registration at the polls.
Chapters on administrative incompetence and “dirty tricks” similarly rely on a handful of decontextualized anecdotes, none of which actually affected election results. For example, Hasen devotes considerable attention to Russian efforts to interfere in the 2016 election. But the Soviets regularly sought to affect U.S. elections during the Cold War. He fears our system would collapse if a foreign government targeted the electrical grid of a single major city on election day. But we’ve handled similar crises—New York City voters, for example, were literally at the polls when terrorists struck the World Trade Center on September 11, 2001.
Solutions—or Just More Problems?
Nor does Election Meltdown offer much in terms of solutions. It begs the question to say that “scholars, lawyers, and those in the public sphere must. . . speak out against voter suppression.” The suggestion that “lawsuits and political organizing” must be used to combat “Republican-led state and local governments” that suppress voters stands out more for its partisan sentiment than its originality. As for the idea that we should generally nationalize election administration—well, what could possibly go wrong with that?
When it comes to dirty tricks, “the public should pressure social media corporations like Facebook, Twitter, and Google” to flag misinformation, offering “fact checks from reputable sources.” But isn’t this type of bias policing already contributing to a breakdown in public trust? There are too many episodes of social media giants relying on wildly partisan sources, such as the Southern Poverty Law Center, to tar conservative speakers as “hate groups” and conservative opinion as disinformation; there are too many episodes of conservative speakers being muzzled by social media sites in what are eventually reversed as unexplained errors. Meanwhile, “fact checking” has increasingly given way to opinion checking or complaining that, while a conservative statement is true, the speaker neglected to mention liberal counterarguments. “Fact checking” reached its absurd denouement when the once-reputable website Snopes began regularly “fact checking” the avowedly satirical Babylon Bee, a conservative outfit operating under the motto, “Fake news you can trust.”
To his credit, Professor Hasen does recommend some unimaginative but common-sense suggestions that most liberal Democrats reject. He recommends increased prosecution of low-tech election crimes, such as absentee voter fraud, and the cleanup of voter registration lists. He calls for some limits on, though not the abolition of, the practice of “ballot harvesting,” in which campaign operatives collect and return absentee ballots for strangers and others—a practice with tremendous opportunity for fraud.
But that brings us to Professor Hasen’s final scourge, “irresponsible claims of ‘stolen’ or ‘rigged’ elections” and “overheated rhetoric,” which eat at public acceptance of election results and, he fears, even threaten the peaceful transition of power. Professor Hasen is correct that there is too much talk of stolen elections and too much overheated language, and he shows intellectual honesty by criticizing Stacy Abrams, the crazed 2018 Democratic nominee for Governor of Georgia who has never conceded her defeat, though she lost by over 100,000 votes and has no evidence that fraud tipped the election against her. Nevertheless, it is not clear whether Election Meltdown is part of the solution or part of the problem.
Given his expansive view of “voter suppression,” Hasen’s call for “public protests” to combat it hardly seems likely to calm the waters. And, unfortunately, throughout Meltdown Professor Hasen resorts to assaults on the motives of his political opponents. Thus, when he criticizes Broward County, Florida Democratic election supervisor Brenda Snipes, or the “administrative incompetence in large Democratic cities,” it is out of genuine concern about ineptitude. But when Donald Trump criticizes Snipes and big-city Democratic administrators, it is because “both, not coincidentally, involve unsubstantiated claims” against “people of color.”
Similarly, when Trump calls on his supporters at a rally to get out and vote, and to watch for voter fraud, Hasen accuses Trump of using “innuendo” to urge his “mostly white crowd” to “intimidate minority voters.” When he can’t find Trump saying racist things, Professor Hasen just reads racism into Trump’s comments: Trump, you see, “often spoke in code” (except for when he “always spoke in code”). “Race,” Hasen has discerned, “was an unspoken subtext of Trump’s tweets and comments.”
It’s not just Trump. For example, Hasen reports on a Republican candidate warning his supporters that registered Democrats had requested absentee ballots in large numbers and that, “if everybody uses and exercises their right to vote—which they absolutely can—and mails those ballots in, we gotta have heavy turnout to offset that.” Rather than accept this as encouragement for his supporters to vote on election day—a call for high turnout—Hasen tendentiously accuses the candidate of worrying that “large numbers of people might vote.” And lest the reader be slow to take the hint, Hasen adds that the Republican “is white,” and his opponent “an African-American woman.”
This type of innuendo gives Meltdown an overly partisan flavor. Hasen wants to be an impartial arbiter, and to his credit he voices criticisms that many in his party don’t want to hear. But Meltdown is ultimately chock full of the comforting liberal assumptions that pass for sophistication in faculty lounges, from the claim that Trump has “authoritarian tendencies” (the supporting evidence? He established a Commission to look into voter fraud), to such shibboleths as “fact based arguments are a hard sell to the right” (tell it to Stacy Abrams and her supporters).
Causes and Symptoms
Innuendo and rhetoric aside, the substantive problems identified in Election Meltdown are not new, and it’s not even shown that they have reached uniquely problematic levels. Most of the solutions suggested are already being undertaken, in one form or another, by governments, private organizations, and individual citizens across the country. The alleged benefits of Hasen’s most far-reaching proposals, such as federalizing elections, are asserted but left unexamined and unsupported. The potential downsides are ignored.
It is troubling that partisans of both parties are quick to allege “fraud” at the drop of a provisional ballot. Many Democrats refused to accept the legitimacy of the last three Republican presidential wins in 2000, 2004, and 2016. Across the aisle, Republicans generally accepted that they lost the presidential elections of 2008 and 2012, but there were no small number who still never accepted Barack Obama as a legitimate president, insisting that he was not born in the United States. This rejection of legitimacy and unwillingness to accept that the loss of an election may be both an honest defeat and a less-than-catastrophic event, is indeed problematic. But rhetoric such as that which permeates Meltdown, with its repeated accusations of racism and bad faith, doesn’t help.
Beyond that, I suspect that Professor Hasen has it backwards. Concerns about legitimacy cannot be resolved through election law. While it certainly makes sense to try to improve our electoral processes and to cool our rhetoric, no election in a continental nation of 300 million people will ever be perfect. If Americans are less willing to accept electoral defeat, it is probably not because of isolated incidents of incompetence, a few dirty tricks, or exaggerated claims of “suppression” or “fraud.” Rather, it is likely because we are increasingly siloed off from one another and increasingly prepared to attribute bad motives, such as racism, or bad acts, such as “suppression” and “fraud,” to our opponents. This tendency, in turn, likely results from the growth of government, which now affects virtually every aspect of our lives on a daily basis, and the increased power of the chief executive. This has made the question of who holds power—and hence elections—more important than they ought to be. Election results are no longer seen as matters of governance, but as battles between good and evil that threaten our core rights.
It doesn’t hurt for doctors to address symptoms. But we should recognize that charges of unfairness or illegitimacy are most likely symptoms, not causes, of what ails us. Meltdown performs a service by identifying problems in our election system that, if addressed, might alleviate some symptoms, and by proposing some common sense solutions. Unfortunately, it does so in a tone that is likely to exacerbate the symptoms, and perhaps the causes, of our condition.