Jurisprudence

Voting Issues Tend to Stem More From Low-Grade Incompetence Than Malfeasance

Election workers are not trying to change the outcome. They’re just often not perfect at their jobs.

Boxes are stacked in room. In the back, a desk and chair stand, with pieces of paper scattered around.
Boxes of voters registration forms are stacked in a space on Tuesday in Des Moines, Iowa. Alex Wong/Getty Images.

In this week’s Amicus, Dahlia Lithwick is joined by Slate contributor Rick Hasen, professor of law and political science at the University of California–Irvine School of Law, for Part 2 of a five-part series on voting and elections. Lithwick and Hasen, who is also the author of the forthcoming book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, speak with Joel Kurth, managing editor of Bridge, a nonprofit news source in Michigan, about what happened in the state during the 2016 election, when candidate Hillary Clinton requested a recount to confirm the tally.

A portion of that conversation has been excerpted below, lightly edited and condensed for clarity. The full episode is available here.

Dahlia Lithwick: This is the section where we just talk about how weird it is that in the 21st century, I can pick up my phone and order exactly the right number of milligrams of rice in my Chinese food, it’s delivered to my door, and yet still we lose boxes of ballots and [voting] machines don’t work. I mean, there’s a way in which so much of what you’re calling incompetence is just—we run elections as though it’s still 1840?

Rick Hasen: Well, so first of all, last night before we recorded this podcast, my Chinese food delivery was wrong twice. First they brought the wrong food, then they forgot the rice. But America’s democracy is not going to crumble if I didn’t get my dinner right. Similarly, people say, “Well, why don’t we just vote with ATM machines?” Well, there’s $1 billion in fraud every year with ATM machines.

If we had that level of error with elections, we’d be in big trouble. I mean, think about it. Aside from going to war or maybe the census, holding an election is the most complicated thing we do as a country. And we have this history of decentralized elections, so we don’t hold one election on Election Day. We’re actually holding thousands of elections. We’re even holding over a thousand elections just in the state of Michigan. And most election officials do a very good job in how they run their elections. But there are these places where there are still problems.

Lithwick: So remind us, Rick, what in the end happens with [the 2016 Michigan] recount?

Hasen: The court stopped the recount. Not only does Michigan have some problems with how poll workers are administering their elections—they also have some problems with the rules for running recounts. And this recount was stopped. Clinton didn’t kick up more of a fuss because she didn’t think she could win. You’d think that Detroit ballots are going to heavily favor Clinton, but they calculated it wasn’t enough to make a difference. Maybe they didn’t want to shine more of a light on the problems in Detroit because Detroit, [like] many American cities, is a city run by Democrats. The state board of elections did an investigation and their conclusion is—

Joel Kurth: It was mass incompetence. They found no evidence of any effort to try to stuff ballots. In fact, in Detroit at the end of the day, I think the difference was about 500 ballots that they couldn’t reconcile. And the former state elections director, Chris Thomas, conducted an audit and they found that it was poor worker training. The ballot machines themselves were 10 years old—they led to frequent jams. There were ballots misplaced, but there was no effort to throw the election.

This is the result of an old city’s aging infrastructure, poorly trained workers who work one day every four years or a couple of elections, and just really poor practices, rather than fraud.

Hasen: No malfeasance, but incompetence.

Lithwick: Correct me if I’m wrong, but it’s race that actually plays a pretty big role in attacks on election administration in Democratic areas. Like Broward County in Florida and in Detroit.

Hasen: The fact is there’s incompetence across the board, but when you’re talking about where the large numbers of votes are and where Democratic voters are, they’re in the large cities, and it’s because of this that people like Trump focus on the incompetence of election administrators in places that have large minority populations often run by people of color who are the election administrators. Race just becomes a part of this conversation and often in ways from Trump that seemed tinged with racism.

Broward County in 2018 was a very close race for the United States Senate between the incumbent Democrat Bill Nelson and the outgoing governor and Republican candidate Rick Scott. Brenda Snipes was the election [supervisor] in Broward County and she had a history of problems and how she administered elections. She wasn’t transparent at all. Trump goes on the attack against Brenda Snipes, an African American woman. It was one of a number of attacks on African American women that Trump had [done] at the time.

But there was no evidence that Brenda Snipes ever tried to steal an election. There was only evidence of incompetence. But Democrats are in a tough spot in terms of how they respond to such attacks because they don’t want to call out their own people for messing things up.

Kurth: Obviously this is their base. It’s largely minority. You don’t want to accuse them of being incompetent and you want to respect their autonomy. You see Republicans accusing Democrats of rigging elections, when a lot of times these are sort of really simple mistakes but they can’t have good explanations for why they occurred. A lot of the heavily urban counties had similar problems to Detroit’s. There was Genesee County, which [inclues] Flint. I believe Saginaw County had similar problems.

Hasen: There’s a very pernicious asymmetry here. When Democrats have problems with incompetence, they’re accused of voter fraud. They’re accused of stealing the election, and Republicans look the other way when the incompetence is happening in Republican areas. And so I think the double standard gets applied once again.

Kurth: I think it’s a real balancing act. I think in urban areas, obviously they’re dealing with many problems and decades and decades of disinvestment that led to some voting irregularities on wider scales. I will say though, too, that it’s not any different than what’s happening on smaller scales in rural places. This is just a matter of volume.

Lithwick: But, let’s be clear, this goes back to the fundamental point of [Hasen’s] book that whether we’re talking about incompetence in election administration, in Democratic areas, in Republican-controlled areas—and to be sure Georgia has had some very serious problems, which we’ll talk about in a later show in this series—the effect overwhelmingly is the same, which is, it undermines confidence in the electoral process. And it’s easier to believe a conspiracy theory than to believe incompetence is the sole cause.

Hasen: The fact of the matter is that when elections are administered badly, when there are problems, it can have a profound effect on people’s trust.

Kurth: The Green Party is convinced that elections are stolen systematically in Detroit. And I think on the other side, the conservatives do as well. And I think that the vast majority of the 85 percent in the middle have a sort of a shoulder shrug of “That’s just how things happen sometimes in Detroit.” It’s not a great way to run a democracy. I mean, you want utmost faith that your vote’s going to count. And unfortunately, especially in Detroit and sometimes in Michigan, you can’t always be sure that’s the case.

Hasen: Here’s the problem. When things go wrong in places like Broward County, Detroit, and Georgia, the news media and interested parties rarely differentiate between incompetence and deliberate abuse, or that differentiation comes later on down the line when the damage is already done. It took months for Michigan election officials to investigate. In the meantime, what did people who watch Fox News learn—that there were more votes than voters in the city of Detroit?

Kurth: I don’t think there’s been any evidence of trying to throw elections that has been credible, but I think that it’s hard not to let your imagination wander if you’re frequently having power outages in precincts during elections and you’re losing ballots. Why wouldn’t you have a conspiracy theory?

Lithwick: Maybe this is a good corollary to your initial point, which is we only think about broken election systems in the week before elections. We only think about them again in the week after. And so if six months later a finding comes out, “no harm, no foul,” or “no foul, but harm,” it’s too late for anybody to care. And conspiracy theories not only get fixed in our imagination, but they have a pretty big megaphone in this current White House. The way in which election returns come in from urban areas absolutely amplifies some of the worst conspiracymongering, right?

Hasen: Sure. So the larger the jurisdiction, the longer it takes to count the votes. The more people there that are voting with provisional ballots or, you know, might be new voters, the longer it takes to count the votes. These tend to be in urban areas. These tend to be in areas that have more Democratic voters. And that’s why we see what professor Ned Foley has called the “big blue shift,” where votes start out being more Republican and as more votes are counted, you end up with a Democratic surge.

We saw this, you may remember, in the 2018 election as California was counting millions of absentee ballots. We saw election after election in Orange County, California, swing from Republicans in the lead to Democrats. That wasn’t because there was any conspiracy—that’s just because that’s how election administration goes, and Trump was saying, let’s just take the results as they are on Election Day. Right? He wants to freeze it in time when he’s in the lead, but in fact, we do see this shift and there’s not a nefarious reason for it. But if you are inclined to believe those conspiracy theories, you may indeed find that there’s something problematic about it.

Listen to the full episode below or wherever you get your podcasts:

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