On a recent episode of Amicus, Dahlia Lithwick reconvened Rick Hasen, an election law professor at UC–Irvine, and Carol Anderson, the Charles Howard Candler professor of African American studies at Emory University, who had both joined her earlier this year for the Election Meltdown series, to discuss the latest threats to the November election, from Donald Trump to voter depression. A portion of their conversation, which has been edited and condensed for clarity, is below.
Dahlia Lithwick: Rick, Election Meltdown was the title you chose for your book published Feb. 4. That was a million years ago. What did your election’s crystal ball fail to flag that has arisen since then? What is melting down today more intensively than anything you even anticipated?
Rick Hasen: No. 1: coronavirus, which even in the best of times would have made holding a successful election in the United States a challenge. It’s much more expensive to run elections in a pandemic, both in person and vote by mail, and one of the early things we talked about in our series was pockets of election administrator incompetence. Well, we’re full of pockets now because to ramp up the scale of mail and balloting is just really, really tough to do. In the best of circumstances, it takes years to roll it out.
And the other thing that changed is that as Donald Trump has been flailing in the polls, he has been ramping up his attacks on voting. Remember this is a guy who claimed there was massive voter fraud in the election he won back in 2016. But now, much of it is targeted at the use of mail-in balloting, but it’s not only that. He’s talking about sending poll watchers to places. When he says that in a debate at the same time he’s talking about the Proud Boys standing by, it’s very worrisome. And he won’t commit to a peaceful transition to power.
I think we’re still in a situation where the election’s going to have to be very close for any of this to matter, but in terms of the statements that Trump is making that undermine democratic elections and the rule of law, we’re kind of off the charts. It’s hard to imagine any U.S. presidential candidate or president from a major political party making the kind of incendiary, unsupported statements undermining our election process like Donald Trump has done.
Carol Anderson: Trump has never really been about democracy and that’s one of the fundamental, foundational pieces we need to understand. And we see that in terms of the way that he kneecapped the post office, knowing that mail-in ballots would be absolutely crucial in the midst of a pandemic. You see it with Louis DeJoy, who went in and gave the order as postmaster general to dismantle sorting machines. And then you add to that the judge who released the RNC from that consent decree on poll watchers. And then you add to that the incendiary refusal to say that white supremacists are bad. So you’re mixing all of this together and what you have is this toxic stew. What Trump does is that he puts a kilo of pure uncut white supremacy on the table, and he has his minions just snort it up and it empowers them. It makes them feel strong. It makes them feel invincible, while everything around them is being destroyed. And the more that he gets in trouble, the more kilos he puts on the table.
And so we have got to be prepared for this. You’ve got this very bifurcated system happening here in the United States. Those who care about elections and are trying to figure out how to hold them in the middle of a pandemic that Trump let run wild and those who are echoing Paul Weyrich, the co-founder of the Heritage Foundation, who basically said, I don’t want everybody to vote because frankly, our leverage goes up as the voting populace goes down. And that’s what we’re seeing as the election strategy coming out of Trump and the Republicans.
From the beginning, Donald Trump has drawn some kind of distinction between absentee ballots, mail-in balloting, solicited mail-in balloting, unsolicited mail-in balloting. He seems to be saying, I want you to vote like they vote in Florida, but not like they vote in all those other states that vote exactly like Florida. Rick, can you please, to the extent that you can, clarify. What kind of mail-in ballots he is objecting to?
Hasen: I think he’s objecting to mail-in ballots that are sent in by people who don’t vote for him. Trying to make sense of what Donald Trump is saying about any topic is challenging. Trying to make sense in this area, it just makes no sense because not only do Trump and his allies regularly vote by mail. I have a friend in Georgia who got four absentee ballot notices from the Trump campaign. Hey, you should apply for absentee ballot. It’s time to vote. They’re really pushing absentee balloting hard among their own supporters.
Anderson: And I’ve got to say, somehow I ended up on some national Republican committee list, and it says, We hear you’re one of our staunchest supporters and we really need you because the Democrats are going to try to steal this election with mail-in ballots. This is the message that’s going out there, and what it’s designed to do is to create confusion. It is designed to cast an air of illegitimacy on the election results, and this is why we also hear Trump say that he’s going to win the election on Election Day, and then the Democrats are going to steal it with mail-in ballots because of the time that it takes to count those ballots. And again, remember Paul Weyrich: I don’t want everybody to vote. Our leverage goes up as the voting populace goes down. So if you can narrow who you’re counting, whose votes you’re counting, that is about power. It’s not about democracy.
I think it’s really important for you to point out the thing you pointed out last time, which is that it is quite enough in poor communities, in minority communities, certainly in the Black community, that has fought tooth and nail even to get to this place to just depress confidence. Sending people out to be “poll watchers,” that’s its own thing to terrorize minority and vulnerable communities. But I think your point is deeper and it’s really worth pulling on. Sending out the message that your vote is not going to count, so don’t even bother, that’s a very storied tradition in this country as well.
Anderson: A key element of voter suppression is voter depression. So we have these suppressive techniques: voter ID, poll closures, massive voter roll purges, eliminating early voting days. All of those things that just make voting harder. But what it begins to do when you begin to see these five-hour lines, and the research is clear on this: It is designed to make folks think, Oh, this is just too much, and the word goes out into the community, and the voter turnout goes down. But also what we know is that confusion and a sense that the whole system is rigged and my vote won’t count and it doesn’t matter what I do. All of that is targeted at key communities to again lower the voter turnout rate.
At the debate Tuesday, there seemed to be a few key components to Donald Trump’s election strategy: pollute the water, sow doubt, sow confusion, depress voters from having any confidence. That’s the totality of the playbook, right?
Hasen: Certainly the idea is to scare people away from voting in person and by mail, and cast doubts over the illegitimacy of the election if Trump doesn’t win. To what end? is what we need to ask. There’s the benign story, which is not benign, and the scary story, the one that caused me to write that we have a five-alarm fire.
So the benign explanation is Trump knows he’s likely to lose. He’s reading the polls like everyone else. It doesn’t look good for him, and so he’s trying to have an excuse for explaining why he lost. Fake news was against him. They put in that fake story about his taxes, and the election was stolen by Democrats. And then he goes off, starts Trump TV, starts his government in exile, whatever it is he does. I don’t think he goes quietly, but he goes away.
The less benign potential here happens only if we have a close enough election that it comes down to a state or two in the Electoral College, and in those states, there’s something that could be pointed to as evidence of fraud or chaos that could lead to someone other than voters being the ultimate deciders of who gets those Electoral College votes from that state. All of this is meant to discourage voting. If it doesn’t work to discourage voting, but it makes it close enough, then there are lawsuits and political maneuvers that are possible to try to take this election away from the voters themselves.
I want to talk about something that we don’t talk about nearly enough. Knowing that 200,000 people have died because of COVID, and innumerable people have lost their jobs, are struggling with child care, struggling to take care of parents—people just aren’t where they were in 2016, and for some of them, the drumbeat of hoops to jump through and the paralysis around just getting through the day is overwhelming. How would you respond to people who are struggling to register or to vote?
Anderson: This is hard. This is an abusive relationship. Let me put it in the terms of African American history. Imagine being enslaved and having virtually no control over your life, your family, your labor, your body. So much of that system was designed to break you. Imagine the strength that you pull upon in the midst of the system designed to break you. And that vision, that fight, in the midst of everything that degrades and debases you, you pull upon community, you pull upon cultural power, you pull upon your spirituality, and you pull upon hope. Hope is powerful. It is without hope that the abusers win. It is with hope that you find the transformation in this system. This is why we don’t have chattel slavery, because the enslaved refused to be enslaved. This is how Jim Crow broke, because those that were deemed as second-class citizens or lower said, Son, you don’t know my name.
And where we are right now, we are being told that we are nothing, and all of those people who are out in the streets. All of those people who are phone banking. They said, Son, you don’t know my name. Because I have a vision of a much better life. I have a vision where we have trust in the scientists and the data that can bring this thing under control. Where all of the enormous resources of this incredible nation are used to empower and support people. Where we have a real justice system. That vision is based on hope and that hope is based on work, and the work that we’re doing now is to reclaim this democracy. It can be done. It will be done. We saw that in 2018. We’re seeing that with the massive voter turnout. We’re seeing with people banging on the doors of Louisville, saying, Let me in so I can vote. We’re seeing it in the people in the five-hour lines here in Atlanta in the midst of a pandemic. That’s what we pull upon. We pull upon that history and that strength, and we get the America we deserve. We get the democracy we deserve.