S1: This ad free podcast is part of your slate plus membership.
S2: Aside from going to war or maybe the census, holding an election is the most complicated thing we do as a country. You just expect them to work until they don’t. We need to do more to recruit and train a talented workforce of election workers on Election Day.
S3: Hi and welcome back to ambigous. This is Slate’s podcast about the law. The rule of law, the Constitution and the Supreme Court. I’m Dahlia Lithwick and I cover those things for Slate. And this is the second part of our five part series, Election Meltdown. Rick Hasen is the author of the book of the same title. He’s also professor of election law at UC Irvine. And he’s here to help us think about the increasingly desperate, pressing question can American democracy survive the 2020 election?
S4: You know, it’s a pretty serious question we’re asking, but we’re trying to ask it in a way that will get people engaged in thinking about these issues before it’s too late. Can’t wait till October to worry about what’s going to happen in November.
S5: What I ask could possibly go wrong with November’s election.
S6: So I’ve got two scenarios that really worry me. Imagine for a 2000 type situation with Trump in the White House and those precincts can’t be counted.
S5: Pretty wide scale voter purge. We’ve been asking civil rights lawyers, public officials, local journalists and disinformation experts for their election doomsday scenarios.
S7: Imagine deep faith the night before an election, a scenario in which people did leave the Internet and take much more physical action.
S8: Our system is only going to work if people have enough confidence in it that they can accept the results. We’re not ask these questions, so we all spiral into despair, but instead to think about what we could do now before November to protect the most important thing we do as Americans voting.
S5: Of course, if you want to spiral into this bear, that’s totally on you. But if you want to be part of this unbelievably important conversation, do join us in Washington, D.C. on February 19th for the Anarchists Election Meltdown Live show featuring former Florida gubernatorial candidate Andrew Guilherme. MacArthur genius fellow and vice president of the Cyber Civil Rights Initiative, Danielle Cetron. And the director of the ACLU Voting Rights Project.
S7: Dale Ho, go to slate.com.
S9: Fleshlight for tickets this week, the storm of the Senate impeachment trial of Donald J. Trump has swirled and blistered and buffeted, but we’re trying to not get blown off course with this project, an amicus listener and actually a Slate contributor, Scott Pelley Youtake said in a post about her election meltdown series on Facebook this week. Quote, It’s not as juicy a topic as the daily reality show that’s been the hallmark of this administration. But I have a strong sense it may be on the final test. And listen, I’m only quoting that because it is especially true of what we’re going to talk about this week. Last week we heard about the pernicious myth of widespread voter fraud and how it bolsters subsequent voter suppression. And this week, we’re turning to, what, Rick incompetents?
S10: Yeah. So, you know, voter suppression is sexy. I think in the election law world, as as these things go off, that’s our scale. And I’m talking about competence in election ministration. Sounds like it’s about as boring as it can be. But when you hear some of the things that have actually gone on, it’s going to, you know, raise the hair on the back of your neck.
S11: Small mistakes in election fenestration could snowball into big problems. Big mistakes can throw something as huge as who won the presidency into question. And remember, as we talked about last week, my main concern, talking about both voter suppression and thinking about incompetence is how is this undermining people’s trust in the fairness of elections? If you think that people can’t comfortably count the votes, that’s a good reason to be worried about the fairness of elections.
S1: So some of the podcast listeners probably are old enough to remember Bush versus Gore and the 2000 election with its famous hanging chads and voting machines that didn’t work and the inability to figure out if people were voting for Bush or Gore. Pat Buchanan, there was a famous Jews for Buchanan vote. You may remember this, the butterfly ballot. All this is pride. Bring back some terrible memories for some of your listeners. But some of your listeners were probably too young or not paying attention back at that time. The upshot of the 2000 election was that we had a lot of problems with how we ran our elections. One study found that about a million votes across America were lost in 2000 due to incompetence in how votes were being counted. You’d think that almost 20 years after Bush versus Gore, we would have gotten better. It hasn’t worked out that way, at least not everywhere. You can look at Broward County, Florida. That was a huge mess. But we’re going to focus on another case, one that’s gotten a lot less attention than Brenda Snipes in Broward County, Florida, and her.
S9: Problems with counting votes in twenty, eighteen and one that could be very important, which is the case of Detroit, Michigan and Slate plus members will actually be getting more insight into what’s going on with elections in Detroit and Michigan. You all will have access to an extended interview with Michigan Secretary of State Jocelyn Benson, who actually offers a glimmer of hope. So look out for that in your slate plus feeds. And if you’re not a slate plus member, now’s a good time to check it out with a two week free trial that you can find at Slate.com, slash Annika’s plus.
S4: But before we speak to Secretary Benson, I spoke to another Michigander. He’s been following elections closely there for a long time.
S12: So my name is Joel KERTH.
S13: I am the managing editor of Bridge magazine in in Michigan. We’re in a long form nonprofit public policy journal. And before that, I was the editor of investigations at the Detroit News. I was the lead reporter in the 2016 election meltdown involving Detroit’s UNRA countable precincts.
S14: There’s a thing called the weakest link axiom of election ministration, the accuracy of an election system and voters confidence in that system is only as strong as the weakest parts of that system. And the case of Detroit and more broadly, Michigan is an example of this.
S12: I’ve been a reporter in Detroit for about 15 years. And with every election in Detroit, there’s allegations of of mis mis voting, lost ballots. Ballots have been found in the in the trunks of cars. There’s often power outages at precincts during elections. There’s difficulty counting ballots.
S1: So remember, the way that Trump surprisingly won the 2016 election is that he won a narrow Electoral College victory in three Midwestern states. If it’s fair to call Pennsylvania, Midwestern, Michigan, Pennsylvania and Wisconsin and the margin across the three states was 80000 votes.
S15: Donald Trump won by about 10000 votes in unofficial election results in Michigan. And those are razor thin. Obviously, we’re talking about five million ballots cast a few days after the election.
S12: I got a phone call from a pretty good source that says there’s not going to be able to count the ballots in Detroit. And I think the person was trying to tip me off because there’s a law in Michigan that says unreconciled votes cannot be recounted.
S1: So Jill Stein, you remember her. She was the Green Party candidate that many Democrats think cost Clinton the election in some of these places. Jill Stein demands a recount. The Clinton campaign, they don’t think that they’re going to win in a recount, but they decide to act as observers. And Michigan has these very strict regulations, as Joel said, about when can you do a recount for recounts?
S15: What happens is people cast ballots in boxes and then there’s a sign in sheet as well. And so the numbers of on the sign in sheets have to match the number of ballots in the box unless there’s a reconciled difference. A paper jam, a lost ballot, and they have to be caught on election night. And if they’re not caught on election night with an explanation, then those precincts can’t be counted. And so I got that. It took a day or so, but I got the the they’re called reconciliation sheets of 600 plus precincts in Detroit. And I found that more than half of them, the counts were off by five or more, which means that they couldn’t be subject to recount by Michigan law, which is a pretty strenuous law. But also know, given the context of Detroit’s problems, doesn’t give a lot of faith in the system, just to be clear.
S16: Now we’re talking about boxes and checklists and stuff that’s left in car straight. This is how we decide elections in America. Like it’s 3:42.
S17: So it’s not true everywhere. In some places, election administrators do a whole lot with very little in terms of resources. But there are places where there are problems and there had been great improvements in many states. But what happened in Detroit is evidence that there hasn’t been improvement everywhere. And if you have a really close election, where’s the attention going to go? It’s going to go to the place that is the weakest link.
S18: So Precinct 152 is pretty infamous because 52 ballots were discovered in a ballot container, but 307 votes had been logged into a poll book. And at the end of the day, they found out that there was a tub of ballots underneath the tabulators and that they hadn’t been sealed. So they couldn’t couldn’t be counted. I think it speaks to the general sloppiness in Detroit. It wasn’t just the 2016 election, the most recent election, 2018. There was a. Another recount involving the city clerk because of misplaced ballots, unsealed ballots, open ballot boxes. And it is a pretty frequent occurrence in Detroit. This really undermined people’s feeling of integrity in the process.
S1: The infamous Precinct 152, those ballots that had never been counted. It led to conspiracy theories.
S17: World Net Daily had a headline, quote, Stealing the vote recount uncovers serious fraud in Detroit. Fox News insider declared, quote, Hoopes Stine’s recount turns up more votes than voters in Detroit. And even the Detroit Free Press had an inflammatory headline, quote, Detroit’s election woes, 782 more votes than voters. That’s got to undermine people’s confidence in the process.
S19: Nothing could be less interesting than talking about tubs of uncounted ballots. And yet who the next president is could turn on it.
S16: This is just 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. We can do everything perfectly.
S9: It’s delivered to our door and yet still we lose boxes of ballots and machines don’t work. And hanging chads determined. I mean, there’s a way in which so much of what you’re calling incompetence is chest. We run elections as though it’s still rock in 1840.
S1: 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. And it’s like America’s democracy doctrine crumbling. I didn’t get my dinner right. Similarly, people say, well, why don’t we just vote with 80m machines? Well, you know, this billion dollars in fraud every year with 80m machines and the republic still stands because banks are willing to absorb that as the cost of doing business. If we had that level of error with elections, we’d be in big trouble. I mean, think about this is 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 or 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.
S16: So remind us, Rick, what in the end happens with this recount?
S10: The court stopped the recount. Not only does Michigan have some problems with, you know, 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 with these ballots uncounted, Detroit ballots are going to heavily favor Clinton. But they calculate 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, as many American cities, are as a city run by Democrats. The state board of Elections did an investigation and their conclusion is it was mass incompetence.
S18: 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 five hundred ballots that they couldn’t reconcile. And the former state elections director, Chris Thomas, conduct an audit.
S20: And they found that it was it was poor worker training. It was the ballot. The machines themselves were 10 years old. They led to frequent jams, their ballots misplaced, but that there was no effort to throw the election. This is as a result of an old city’s aging infrastructure, poorly trained workers who who work. You know, one day every four years or a couple elections and an in just really poor practices rather than fraud.
S10: No malfeasance but incompetence.
S9: Correct me if I’m wrong, but it’s race actually that plays a pretty big role in attacks on election administration in Democratic areas like Broward County in Florida and in Detroit.
S1: The fact is there’s incompetence across the board.
S21: But when you’re talking about where the large numbers of votes are and where Democratic voters are there 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 minute traders. And race just becomes a part of this conversation and often in ways from Trump that seem tinged with racism.
S22: 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 magistrate from Broward County, and she had a history of problems and how she administer her elections. She wasn’t transparent at all. She didn’t tell Rick Scott when they would check her record, how many ballots were left to count. Trump goes on the attack against Brenda Snipes, an African-American woman. It was one of a number of attacks of African-American women that Trump had announced at the time.
S4: Here’s President Trump shouting over the blades of Marine One back in November 2018.
S23: You look at Broward County, they have had a horrible history. How do you look at, say, the person in this case, a woman involved? She has had a horrible history and all of a sudden they’re finding votes out of nowhere. And Rick Scott, who won by you know, it was close, but he won by a comfortable margin. Every couple of hours, it goes down a little bit. And then you see the people. And they were involved. That fraud of the fake dossier, the phony dossier, and I guess I hear they were somehow involved. Work with the g._p._s SFUSD people who have committed. I mean, you look at what they’ve done. You look at the dishonesty. Look, look, this bad things have gone on in Broward County. Really bad things. She’s been to court. She’s had a lot of problems. She’s lost. I say this. He easily won. But every hour it seems to be going down. I think that people have to look at it very, very cautiously.
S4: Well, that was a pretty bizarre episode of Chopper Talk. Right there, there was no evidence that Brenda Snipes ever tried to steal election. There was only evidence of incompetence. Not sure how g._p._s Fusion worked its way in there. It’s kind of a web of conspiracy theories lead as far as the Ukraine calling impeachment, but no evidence of rigging the vote gesture. Good old fashioned 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. Listen to Joe KERTH from Michigan’s Bridge magazine again. And you can hear how that dynamic that we saw in Broward County also play out in Michigan.
S24: 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. It it opens the Democrats up to accusations of incompetence that you see of Republicans accusing Democratics 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. It wasn’t just Detroit. A lot of the heavily urban counties had similar problems as Detroit. There was a Genesee County, which is Flint. I believe Saginaw County had similar problems.
S1: 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, you know, the double standard gets applied once again.
S24: 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 that lead to some voting irregularities on on wider scales. I will say, though, too, that it’s it’s not any different than what’s happening on on smaller scales in rural places as a matter of volume.
S16: But but let’s be clear, and this goes back to the fundamental point of your 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. But 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 build to incompetence is the sole cause.
S25: 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.
S26: 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 middle middle, the 85 percent in the middle have a sort of a shoulder shrug off. That’s just how things happen sometimes in Detroit. It’s not a great way to run a democracy. I mean, you want you want ultimate like upmost faith that your votes can count. And unfortunately, especially in Detroit and sometimes in Michigan, that’s just you cannot always be sure that’s the case.
S22: So here’s the problem. When things go wrong in places like Broward County, Detroit, in 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?
S27: I don’t think that there’s been any evidence of trying to throw elections that have been, you know, that that are credible. But I think that it is hard not to let your imagination wander if you’re frequently having power outages in precincts during elections, in your losing ballots. Why wouldn’t you have a conspiracy theory?
S16: 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 conspiracy mongering, right?
S25: 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 might be maybe their 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. Yeah, 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’re inclined to believe those conspiracy theories, you may indeed find that there’s something problematic about it.
S16: Okay. So, Rick, having focused laser focused on Michigan’s problems and specifically maybe Detroit’s problems. Is there some glimmer of hope here to be gleaned?
S1: Well, you’re not gonna find it for me, but you might find it from Jocelyn Benson, the former election law professor and law school dean. Now, she’s a secretary of state of Michigan. And I should pause for a second. Say we’ve been talking about secretaries of state. What are they? The chief election officers of the state. But they don’t actually get to run the elections in each state because those elections are run on a county or even sub county level. But they do have some control over how elections are run. So Benson literally wrote the book on secretaries of state and called Secretaries of State, Guardians of the Democratic Process, which I think is more aspirational than descriptive. But she’s now in charge. And I asked her about some of the concerns raised by Joel KERTH. And here’s what she had to say in 2016.
S28: That heart of the errors were poll worker based human error. Poll workers making errors in the way they left records of ballots after they were cast. And the human errors were identified in the recount process. The integrity of the election itself was not in question. In fact, it just underscored, again, in my view, the examples, the types of examples of mistakes that human beings can make when they’re running the election process. So they’re useful points of reference for us. Also, as we train our election workers for future elections. And part of the reason, frankly, why I’ve made recruiting and training poll workers across the state and one of my priorities for preparing for 2020 and across the country, particularly in urban areas, we need to do more to recruit and train a talented workforce of election workers on Election Day to ensure they are prepared to follow the law and at, you know, in and protect the process of the vote.
S16: Are places like Michigan and Florida and Georgia. Have they learned what they need to know? And there they geared up and ready to do. November twenty twenty. Right?
S10: Well, I have more hope than I do optimism.
S11: If you asked election mysteries in 2012 what the biggest problem they might face in 2016 would be, they might not have said. Russian operatives trying to hack into our voter registration databases, which is something that we know happened. Sometimes you’re fighting the last war. So now there’s a lot of concern about cybersecurity.
S29: But we’ve got a lot of places that are rolling out brand new voting machines being used for the first time. It’s like premiering your new play Straight to Broadway. You know, high risk there. And so, you know, I’m not sure what the future is going to hold. I know that there are a lot of good people with good intentions who are trying to make elections better. But but not everyone and some people are trying to make things worse. So in the book Election Meltdown, I conjured up a kind of worst case scenario. In the worst case scenario is, rather than those isolated power outages that Joe KERTH talked about in Detroit, how about if there’s a cyber attack from a foreign entity that brings down the power grid in the city of Detroit on Election Day and the potential for us not being able to run the election over?
S30: Right. We only have one election day for president. What happens then? I raise the scenario with both Joe KERTH and Justin Benson. Ask them what they thought would happen if there were such an attack.
S24: It would be it would be absolutely chaos and I think it would hurt the, you know, people would now want to vote anymore on that specific example in terms of a power outage on Election Day.
S28: We have generators in place and backup plans and of course, paper ballots to enable us to actually keep proceeding if we are all in close communication with the fifteen hundred jurisdictions, in this case, the one jurisdiction in Detroit or others that may be affected. Our preparation for things like that, whether they be natural disasters or, you know, the acts of nefarious people trying to attack our system really relies on us to be close to the ground on election day and prepared for all these potential scenarios, just as we are for a power outage and then also partnering with the Department of Homeland Security and and with other national entities like the Information Sharing and Analysis Center ISAC, so that we are in real time getting support and feedback. If these things are happening in other places as well. And so I feel that we’re more prepared than ever. And I say this not just for Michigan, but I think other states as well to deal with the types of attacks you’re referencing because there’s been so much more attention and proactive preparation and planning in place than I think ever before. And with fifteen hundred jurisdictions, it certainly leaves it open for four challenges and wrinkles. But but I’m I’m bolstered and emboldened by the fact that we’ve got so many people with eyes on this problem, identifying potential solutions. And our goal is to make sure all those people are in place on election day for a rapid response plan to be executed. If anything does, as you suggest like that happen.
S16: So what I take from Jocelyn Benson is actually a nice, tidy summary of the thesis of your book, which is that somebody who has the role of secretary of state has to say the aspirational thing, has to say it’s fix the system works, get out there and vote and there’s nothing to worry about. Whereas the journalists, Chul KERTH is pretty much saying you have reason to fear the doomsday scenario because it could really happen. And there’s a weird way in which we’re having two conversations, one about what is and one about what we can’t say might be simply because we want people to get out there and vote.
S25: But I took away from Secretary Benson is that she has limited control over her fifteen hundred jurisdictions. She’s doing the best she can with what she has to work with. And she’s going to try and be as transparent as possible, I think. Not only promoting confidence is important, but being honest with what’s going on. And I think that really when I look at incompetant election administrators, you know, they always say if it’s not the crime, it’s the cover up. Lots of times when election officials are not telling you what’s going on, it’s because they’re covering up their malfeasance or their misfeasance. And with someone like Secretary Benson, if she could control the entire election system of Michigan, I would probably have more confidence than the fact that she is this general coordinator of an election being run in fifteen hundred jurisdictions. So I asked Joe KERTH if things are potentially going to get better for 2020. And here’s what he said.
S15: Ultimately always comes down to just sort of like roll the dice in Michigan. It’s really sad to say that. But I’m sure as rain, there’s there’s gonna be a problem in Detroit. This is a crisis for six months after there’s a crisis and then everybody forgets about it. It’s not a sexy thing to invest in.
S26: And it’s something little like sewers, you know, that you just expect them to work until they don’t and you’re not going to win elections.
S12: Standing up and in talking about how you just hired, you know, 10 times more volunteers or bought new optical scanners. It’s not a sexy subject until until it all falls apart.
S16: I guess we are now simply hoping that it doesn’t rain in Detroit in November of 2020. And also that the boxes and the bins and the papers are all in good order.
S31: Well, Talya, I don’t know how religious you are, but there is something called the election administrator’s prayer, which is, Lord, let this election not be close. And really, I wrote that in much about that in my 2012 book, The Voting Wars. And here, things have not changed. The best solution to a the best way to avoid election debacle is for an election not to be close, because when it’s close, you’re peering into the bins, you’re cleaning the gunk out of the machines.
S14: We didn’t even talk about Palm Beach County attempts to run a recount in 2018, where the vote counting machines that were recounting the ballots ended up failing because an election worker thought the machines were going too fast and shoved a paperclip into the mechanism and caused the machine to explode. So, yeah. That’s what it’s going to come down to. So, you know, like a sewer. It stinks.
S16: We’ve talked now about vote suppression and the myth of vote fraud in our first episode, in our second here, we’ve just finished talking about just incompetence and technology and the great brokenness of electoral systems.
S25: What’s coming up next so we can turn to dirty tricks? We’re going to look at that contested election in North Carolina in 2018, this congressional election with its absentee ballot problems. Russian interference in 2016, as well as the 2017 Senate race between Doug Jones and Roy Moore in Alabama. You remember that was the race that came up when Jeff Sessions became attorney general and some dirty tricks done in that race that might surprise you.
S32: And that is a wrap for this part two of our election meltdown series here on Amicus from me and from Rick Cassin. Thank you so much for listening in. If you want to get in touch, our e-mail is Amicus at Slate.com or you can always find us on Facebook. Facebook dot com slash ambigous. Today’s show was produced by Sara Bermingham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is senior managing producer of Slate podcasts. Slate Plus members, you have a bonus episode coming your way. Everyone else back with you in a week for part 3 of election meltdown.