Election Meltdown in the Iowa Caucuses

concerns about that state's first in the Nation caucus. I have caucused for twenty years, and I know how important it is for to our party, to our states, and to everyone from our neighbors to new voters to be able to come together all across the state. We want Iowans to be confident in the results and in the process, and we are going to take the time that we need to make sure that we do just that. Joining me as election law expert, Richard Hassan a professor at

u C Irvine Law School. His new book is Election Meltdown, Dirty Tricks, Distrust, and the Threat to American Democracy. You discuss four factors that are increasing mistrust in our elections. The escalation of voter suppression, in competence in the administration of elections, foreign and domestic dirty tricks, and inflammatory rhetoric. If you had to list the most important of these, which would it be, Well, I don't know that I can name one, because a lot of these things work together.

So the biggest concern about voter suppression, I think, is not how many people are not being able to vote, but what it does to people's confidence in the process. So take voter ID laws for example. We know that, in part thanks to countermeasures, they don't seem to have

a big effect on turnout. There are other laws that are more suppressive that you have an effect on turnout, but claims of voter fraud there are used to justify laws like voter ID laws convinced Republicans that voter fraud is a major problem, and the laws that are passed in response to the claims of voter fraud convinced Democrats and voter suppression is a major problem. And so we have a double whammy where both sides believe that people are cheating in the elections, and it feeds into a

general mistrust of the process. You mentioned that Phish feed Kobak is arguably the most important voting rights trial so far in the twenty one century. Tell us why, and this is a good example of a counter example to voter I D laws where we're not sure that they have a big effect. Kansas had passed a law that required if you wanted to register to vote, not each time you go vote, but if you want to register and be eligible to vote, you had to produce documentary

proof of citizenship. So show me your paper's law, come up with your birth certificate or your naturalization certificate if you want to be able to register to vote. And we know that before a federal district court imposed a pluminary junction against this requirement, about thirty thousand people had their voter registrations suspended. They were not able to register, and they would not have been able to vote had the court not acted. So that's a pretty significant effect

at issue in Fish versus Kobec. It was a complicated legal case, but an issue when it went to trial was the question whether non citizen voting, which is illegal, was a major problem because the state of Kansas, if it wanted to impose this additional requirement in some tension with federal law, which says, you know, all you have to do is basically put your name on a postcard and do a few other things and you can register to vote. The question was is there a substantial problem?

And here was the chance for Chris Kobach, former Secretary of State of Kansas, who decided he would actually litigate the case as one of the lawyers in the case. Very unusual. It was his burden to show that nonsense and voting was a serious problem, and he called the small amount of non citizen voting he could point to on a TRUO cases the tip of the iceberg. And I named Chapter one of Election Meltdown the icicle because Judge Julie Robinson, the chief judge of this Kansas Federal

District Court, said it was not an iceberg. It was merely an icicle made up mostly of administrative error. And lots of times when you probe beneath the surface, what you find is that claims of malfeasance actually turned out to be incompetence. That we see this across the board, Democrats Republicans, but it's often turned around and made into a claim of someone trying to cheat because we're so

polarized that people don't believe those things. And so Fish versus Cobach was so important because here was the chance in a federal court with the rules of evidence, make your case, and the judge found abysmally Coback failed to make his case so bad that he was actually sanctioned twice in that case. At one point he was required to get a continuing legal education course in trial fundamentals

in order to satisfy the court's contempt finding. Despite all the evidence to the contrary, why do we still see people arguing the need for strict voter id laws. So I think the answer is a political answer. The Republican Party in and started to see that the number of voters of color, younger voters, voters who make up kind of the Democratic Party coalition, they're all voting for Democrats, and the Republican Party was increasingly becoming a white rural party.

And so there were two approaches that the Republican Party had. One was to try to expand the appeal of the Republican Party. This was George W. Bush's approach. This is what the so called autopsy that the Republican Party did after the elections suggested. The other is shrink the electorate,

make it harder for people to register and vote. And so it's no coincidence that in those places where these strict voter ide laws are passed, and these other strict voting laws are passed, they're almost exclusively in Republican dominated legislatures creating these rules. Not every Republican legislature is doing this, and there have been a lot of states with Republican election ministrariores and legislatures that have improved things. Ohio, for example,

moved to online voter registration. Right, look at Florida where, thanks to an amendment getting around the legislature, they're now re enfranchising felons, although this litigation about that. But in those places where they're passed, they seem to be aimed at trying to make it harder for people who are likely to vote for Democrats to register and vote. They don't always have that effect, but that seems to be their intent. So let's turn to the Supreme Court for

a moment. How has the Roberts Court responded to voting rights cases in general? Yeah, so the Supreme Court decided the case out of Ohio. This was in the Hoosted case where the Court allowed Ohio to remove voters from the voter registration roles if they hadn't voted in two consecutive national elections and hadn't responded to an attempt to

contact them. It was a very technical case. It was about the National Voter Registration Act, which is laws called the votor voter law that requires states to offer certain opportunities to register and certain rules about pershing. But you know, generally speaking of the Court has been not very receptive to voting rights claims against laws that make it harder to register vote. We can go back to two thousand eight, the Crawford versus Marion County case, where the Supreme Court

upheld indiana strict voter ide law. The court allowed Texas voter ide law to go into fact. I mean, there are all kinds of cases that have come up on an emergency basis. The Supreme Court, I would say, the

Court has more conservatives than liberals. The conservves tend to believe these measures are necessary in order to prevent the possibility of fraud or to promote voter confidence, and so I don't expect going forward we're going to see the Supreme Court playing much of a backstop role except for laws that might be really egregiously affecting the right to vote. The Supreme Court put an end to preclearance in and

Shelby County, the holder how much has that affected voting rights? Well, so, one of the things that this law did was it said, if you were a jurisdiction with the history of racial discrimination voting, and you wanted to do something as simple as move a polling place across the street, or go from nine polling places to eight polling places jurisdiction, you had to go to the federal government and you had to prove to the federal government, either to a three

judge court or to the Department of Justice, that the change would not make protected and already voters works off. And so we know that since Shelby County, there have been lots of voting changes that have been put in place in these jurisdictions that used to be covered under this part of the Voting Rights Act, and some of them have been the subject of lawsuits under other provisions of the Voting Rights Act or other kinds of lawsuits

claiming that these laws are discriminate. Tory with the old Section five preclarance rules, it was the burden on the states that were under this these rules to show that things would not get worse. Now the burden is on the plaintiff to show that things are much worse in order to get a law blocked, and so it's a lot harder. And so I would say what we've seen is that plaintiffs have had mixed success in trying to stop rules that otherwise likely would have been stopped by

the preclarance rules. When you talk about election administrator incompetence, Florida comes to mind the twenty eighteen elections. Everyone was saying, why is this happening again in this same county. Our local officials not doing what they should be doing to make sure that people are adept at their jobs. So I think that, you know, the first thing to recognize is that we don't conduct a single election for president

or single election for Congress. We have something like nine thousand election jurisdictions, each run by local county or sub county election administrators, most of a pretty good job with what they have to work with with tight budgets. There's a great push towards professionalism, but there are these weak links, you know. We saw it in Iowa in the way

the Democratic Party was trying to run its caucus. We saw it in in Florida with Broward County, where they missed a recount deadline in a very close U. S. Senate race by two minutes because the employees did not know how to properly upload their results to a state website. We can look across the country, UH, and this is a bipartisan problem. Democratic and Republican election ministrators. These pockets

have incompetence. We tend to focus more on the big cities which are controlled by Democrats because that's where there are many more votes. And then that's where you start seeing claims that no, it's not a competence as actually attempt to try to cheat in the elections. So there's a lot of that loose rhetoric in your book. This was a very scary thing to read. There's good reason to believe that Russians have the hacking ability to bring down the elector go grid on election day in a

swing state democratic city like Milwaukee or Detroit. Is there any reason to think they won't do that. It seems like it's the next step after the election interference. So this would be I think an act of war, UH to interfere with an election in such a serious way. And we know that in the president Obama actually picked up the Red phone. I don't know there actually was a red phone, but picked up the red phone to Moscow and said cut it out with some of the interference.

And at that point we only knew a little bit of what the Russians were doing. Unfortunately, now we have a president who not only has not aggressively taken steps to prevent foreign interference, he's now invited foreign interference from at least three countries, Russia, Ukraine, and China. And so

it's very concerning. There's one point in the book where I refer to a New York Times report where McK mulvaney, the acting chief of staff for President Trump, is talking to Kristen Nielsen, who was then the Department of Homeland Security secretary, and basically says, don't talk to Trump about election security. Keep it below his level, with the idea that you know, this is something we need to work on as a country, but keep it from the president. And that's just a very bad position to be in.

But it would be an egregious violation of our sovereignty if someone tried to mess with our elections this way, and it's the kind of potential meltdown scenario that I worry about that we don't have a lot of control over all. Right, there's things we can do to make sure electionment is trying to do a better job. We can do a better job educating the media, for example, about not calling races early while ballots are still being counted.

But it's really up to cybersecurity experts in government and in the private sector to make sure that our electrical grid is properly maintained. How many states have paper ballot requirements because it seems like every time something happens more and more the answer is, well, you need a paper ballot as well. So this is kind of a moving target because given that we have this decentralization of our election system, states and localities are have in different machinery

and changing things. I think the good news is that these totally paperless ballots are on their way out. These are what referred to as d r E machines. These are the ones that were electronic only and if you did a recount, it just meant you push the same

button again. The new controversy is over the newest kind of voting machines, which we'll be hearing a lot more about these are ballot marking devices or b m d s. So you walk up, there's a touchscreen, you mark all your choices, and then a ballot gets printed with your choices on it. Now here's where there's some controversy along with the names. So say you know you vote in Grasso for president. Along with the names, it's going to

have a barcode. And when the ballot counting devices count the ballots, they're not going to be looking for, like optically scan the name of the candidate. There instead going to count the barcode. And of course if you look at the barcode, it's not human readable. You can't look at that and say is that a vote for tunors that vote for someone else. And so one of the questions is when you have a recount, are you going to count the barcode or you're gonna count the name

that's printed on the paper. And Georgia, for example, looks like they're moving towards counting the barcode, and the barcode controls and then how do we trust that the results are actually accurate. It's paper, but it's not something that a human being can look at and say, yes, that's a vote for this candidate or another. While we're here, let's talk about the Iowa caucuses and what happened there.

The Department of Homeland Security Secretary Chad Wolfe said that the Department Cyber Division had offered to test the APP and the Iowan said no thanks. Well, let's be clear, it wasn't the Iowans in terms of the Iowa election officials, it was the Democratic Party. So we've got this really weird system where with these caucuses, these are privately run by the political parties, they're not run by the government. And I think it's terrible that the io Democratic Party

turned down the ability to test the apps. I think it's terrible too when once every four years the eyes of the world on you to not have done more sufficient testing to make sure that the system could accurately work. And of course they were doing us at the same time that they changed the rules for how they were going to aggregate votes and decide, you know, who had the right threshold, and how they were going to report the winners and the losers, and so it was a

big mess. Um, we need to have better election security, but we also probably need to take away from the political party's the ability to run these very important elections, and they should be in the hands of government officials. Nevada is reportedly planning to use this same app. When phones can be hacked so easily, why use a phone app. So let's be clear, the app is not being used

to cast votes. It's being used to report to tallies at caucus sites, and there is a piece of paper that will be a backup, and you know, we can check and make sure. And this is one of the reasons I think that the Iowa Democrats didn't immediately announce the results because they don't want to be in a situation where they've relied on this app where there are problems.

They get a vote total, they announced the winner and a loser, and then they have to go back a few weeks later and say, oops, you know that was the wrong total. Better to be taking more time and getting it right. And so I think getting it right would include doing some kind of check to make sure that the numbers that were recorded in the app match the numbers that are physically there. That that could be talking over the phone or sending a texted picture of

the vote totals. I mean, there are different ways to try to do this. But ideally we shouldn't be doing this at all. We should have hand marked paper ballots that are counted in a way that's uniform across the jurisdiction. So politicians are latching onto this problem in Iowa and saying that Iowa shouldn't keep its status as the first in the country to select a presidential nominee. Do they have a good point? Well, I've been against the caucuses for other reasons for a long time, but this is

I think the nail and the coffin. I think caucuses are exclusionary. I was a state that you know, there's a question about its diversity in terms of representing the Democratic Party. There are all kinds of issues about Iowa, but I think at the very top of the list is we should not have this political party being the one running this. Instead, it should be run like a regular primary, as we do in most other states. Thanks

for being on Bloomberg Law. Rick Fath, Professor Rick Hassen of the U C. Irvine Law School