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During Tuesday’s presidential debate, the first one-on-one confrontation between President Donald Trump and Joe Biden, there will be a lot of important issues discussed: the coronavirus, the Supreme Court, Trump’s taxes. But Richard L. Hasen, an election law expert at the University of California–Irvine School of Law and a Slate contributor, says he’ll be listening for something else: what the candidates have to say about the integrity of the election, which moderator and Fox News anchor Chris Wallace has said he’ll ask about. Trump has been undermining the validity of mail-in ballots, harping on “voter fraud,” and suggesting that he wants to find a way to “protect the vote” with election monitors—an act that wasn’t even legally possible until this election. All of which makes what will happen on Election Day unpredictable. So for Tuesday’s episode of What Next, I spoke with Hasen about the loopholes in the U.S. election system, and how the president might exploit them. Our conversation has been edited and condensed for clarity.
Mary Harris: Part of the reason it’s so hard to tell what might happen in November is that the American system is so disaggregated. The process is controlled by a local administrator, possibly someone elected, possibly someone who is explicitly partisan. And once your vote is counted (if it’s counted!), that’s not the end of the story: Electors are assigned to transmit your vote to the Electoral College. Those results are counted by Congress. Each step in this process is a place where the whole thing can break down.
Right now, we’re in the pregame part of the proceedings, when lawyers try to set the ground rules for the election itself. There are over 250 lawsuits that have been filed over pandemic-related voting concerns alone, more than you’ve seen in any year before.
Richard L. Hasen: The pattern we’re seeing is, Democrats and voting rights groups are suing to try to ease the rules during the pandemic. And Republicans, the Trump campaign, and their allies have been suing or defending suits, trying to make it harder to expand the right to vote. There are all kinds of other disputes related to mail-in balloting, not about who should vote, but how to vote. What happens if you can’t get a notary to sign your ballot, as some states require? Should it be thrown out? What if you forget to use the second secret envelope that’s supposed to go inside? This was the big issue in Pennsylvania, where thousands of people during the primary had their ballots thrown out because they sent in so-called naked ballots, ballots not in their secrecy envelopes. These nitty-gritty details are what’s going to potentially disenfranchise voters, and there’s a ton of uncertainty. We’re five weeks from the election, so we’re really talking about a period when these rules should be solidified. There’s even a name for this idea, called the Purcell principle, which comes from a Supreme Court case called Purcell v. Gonzalez that says a court shouldn’t be making last-minute changes just before an election. So far, that rule has worked against Democrats in a number of cases.
How’s it worked against Democrats?
Democrats were getting some favorable court opinions in the lower courts and getting some of these balloting rules eased so people can vote safely during the pandemic. Then appeals courts said it’s now too close to the election, so you can’t make the change.
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I want to talk about Pennsylvania a little bit, because it’s a swing state and so many people see it at the center of what’s about to happen This is the first time it’s going to have a national election where there’s going to be so much absentee balloting. My understanding is it’s not going to be counting until Election Day itself. Is that right?
The rules for when you can process absentee ballots differ from state to state. By “process,” I mean everything but the counting. You need to make sure that when the ballot comes in, it’s legitimately from the voter. You check a signature or some other identifying information. Did the voter do everything they had to do? That takes time. It takes much longer to figure that out than just counting ballots that come in through the polling place. And at this time, there’s no deal between the Democratic governor and the Republican Assembly over extending that time so that processing and counting can happen earlier, as is done in many other states. That means that there could be potentially millions of ballots that the state won’t start processing till Election Day. And that means it could be at least a few days before we have definitive results coming out of Pennsylvania.
That means we really may not have any results on Election Day.
I think the important thing to note is that a candidate’s determination to concede or declare victory has no specific legal implications. The counting is going to continue. Trump could declare victory on election night based on partial returns, but it won’t have any legal effect. We had a few races in California in 2018 where the Republican was ahead on the election night votes but, because Democrats tend to vote later, more ballots were counted over the next two and a half weeks, and these races flipped to Democratic wins. So it’s really quite possible in a place like Pennsylvania that Trump could be ahead in the in-person votes and lose the election. If he declares victory, that doesn’t have any legal significance, but a lot of his supporters could believe that if the vote count changes, somebody is cheating. Words matter in this context, especially because democracy depends on losers accepting the results of fair elections.
How do you categorize the concern that Trump might not accept the election’s results if they show he’s losing? Is that something we have a good reason to think might happen?
There’s a big difference between him saying I won the election and him saying if the election were fair and not rigged, I would have won. The question is, does he pack up and leave if he loses, or not?
So it’s a matter of degree.
It’s not just degree. If you declare yourself the winner and say you’re staying put and you actually have not won, that creates a real constitutional crisis. If you grumble on your way out the door, that might undermine the legitimacy of the election in the eyes of his most ardent supporters. But if the election is not close, I think a lot of Republicans are going to move on. So a big part of this depends on the closeness of the election.
Do you think we’ll see a concession speech on election night?
I don’t think we’d see a concession speech in the traditional sense of what a normal candidate does.
What do you mean by that?
Again, I could imagine him saying, if it weren’t rigged, I would have won. I can’t imagine him congratulating Joe Biden, but I don’t know what’s going on in Trump’s head. Maybe he’ll surprise us. But I think it’s much more dangerous if he actually loses the election and says, I won, and I’m not leaving.
And on election night, public sentiment can create pressure of its own, pressure that might resolve this contest prematurely.
Those of us in the field of election law have been pushing decision desks and major news organizations to be very cautious, especially given the uncertainty of what the vote’s going to look like in terms of how much is going to be by mail. The message should be that it’s too early to call unless there’s a reason to think that it’s not. It’s a problem when you see reporting that claims 100 percent of precincts reporting but only counts in-person voting, with tens of thousands of other ballots outstanding. So everyone needs to have patience. It starts with the media. And I think that message has actually gotten out. There was a recent poll that showed that over 60 percent of voters believe we won’t know by the day after the election who’s won.
There’s one caveat in all of the reporting about all the things that could go wrong with the election: If there’s a landslide, a lot of these things don’t matter. Does that reassure you at all?
Yes. If it’s not close, we won’t have a crisis this time. But we have a broken election system. And if we squeak through, that doesn’t mean it’s not broken. It just means we got lucky. We’ve got to get out of this. We need to either have standards that would apply nationally or a nonpartisan, quasi-independent body, with competent people in charge, that runs our elections.
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