Q&A with election law expert Rick Hasen
Vigilance, not panic, would appear to be in order
Rick Hasen is a Professor of Law at UCLA, a prolific author and one of the leading experts in the United States on election law. With just over three weeks to go until election day, Rick graciously agreed to answer some questions I had about various reports/anxieties swirling about concerning election security, potential Trump shenanigans, etc.
Below is our exchange, including helpful links for anyone who wants to dig deeper.
There are reports of raids of people's homes in both Texas and Florida to question whether those in the household are legitimately registered to vote. Is there any precedent for these raids? Has there been any pushback from courts about this?
Harassment of voters by police in the South, particularly voters of color, is not new. Both Florida and Texas created police forces specifically to go after election fraud. They haven’t had much to show for it, and many of the people that they have gone after have been people who made administrative mistakes rather than committing crimes. It is fair to say that these are efforts to intimidate voters and to deter certain groups of people from voting---not to mention reenforcing narratives that Democratic-leaning voters are committing election fraud and stealing elections.
There has been some pushback, with parts of a recent Texas law that criminalized certain political organizing activity struck down as likely unconstitutional. A number of those people arrested by these police have seen charges dropped or been acquitted.
This kind of police harassment is far less common than it was before the passage of the Voting Rights Act in 1965, but it’s a disturbing new trend.
We're also seeing regular reports of voter roll purges, directed by GOP officials, including some 700,000 in NC and over half a million in Texas. How common are these? Do the numbers we see reported stand out compared to previous years?
First of all, a lot of these reports are misleading. The North Carolina figures, for example, represent the normal work over years of removing people from the voting rolls who are no longer eligible to vote, usually because they have moved or died. Normal list maintenance is necessary to assure that voting rolls are accurate. (Unfortunately, because of false Trumpian allegations of fraud, many Republican states have pulled out of an interstate consortium, ERIC, that was used to share voter registration information to make list maintenance work better across states.)
So people should not freak out unnecessarily when they hear of reports of people being removed from voting rolls. (There are far fewer stories of the hundreds of thousands added to voting rolls over years in states.) That said, there have been stories of last minute voter purges, including one in Alabama, purportedly to remove non-citizens from the voter rolls but much more about removing people likely to vote for Democrats who are eligible voters. It also feeds into the narrative that voter fraud is a big problem in the country. (It is not.). There is a federal law that makes it very difficult for states to engage in large scale purges in the 90 days before a federal election, and so there’s been some legal pushback on some of these efforts. (JW: The DOJ is suing Virginia over late purges)
The (now infamous) Heritage Foundation keeps a database of people who have illegally voted, going back to the 1980s. I think they've logged something like 1500 cases. I know that's a microscopic number relative to all votes cast since then, but are the cases themselves valid examples?
The database really demonstrates that voter fraud is actually a very small problem in the United States. The database covers a period when billions of votes have been cast and there are not that many instances. Some are instances of accusations and prosecutions, not convictions. Almost none involve the kind of fraud, impersonation fraud, that voter ID laws are designed to prevent. I’ve written extensively, including in my 2012 book, The Voting Wars, and my 2020 book, Election Meltdown, about how little voter fraud there is in the contemporary United States, and about how certain individuals like Hans von Spakovsky of the Heritage Foundation use false and exaggerated allegations of voter fraud to push for restrictive voting laws.
Should we have universal, easily accessible voter ID once and for all?
In my most recent book, A Real Right to Vote, I propose a constitutional amendment affirmatively guaranteeing a right to vote in the U.S. Constitution. (Many Americans are shocked to find that it is not already there.) Among the provisions I have in my proposed amendment is one that would couple universal voter registration and some form of national voter ID. it would be the kind of compromise that would make our election system stronger and cut back on litigation. But each party has a reason to oppose a part of the plan, so I’m not holding my breath for this to happen any time soon.
In the meantime, voter ID turns out to be much less of an impediment to voting than many people on the left claim---though that does not justify putting strict provisions in place without ways for voters who have trouble getting the ids to easily get it. I’m far, far more concerned about laws in places like Arizona that require documentary proof of citizenship before someone may be allowed to vote. Those laws stand to disenfranchise thousands of people in each state where these requirements are put in place.
You've written that our processes for securing and counting the vote are better than they were four years ago and that post-election Trump shenanigans, if he loses, are unlikely to bear fruit. With that said, is there anything that keeps you up at night, regarding election administration in 2024?
That’s a huge question. Things are better but I’m still concerned, because one of the major party candidates for President is still falsely claiming our system is rife with fraud, that candidate tried to subvert a fair election in 2020, and there are people who want to subvert it again in 2024. We have some new safeguards in place, including new federal legislation that would make it harder to steal the election this time around, but our system is only as strong as the willingness of people to obey the law. If they lie about election results and don’t obey the law, we will be in for some serious trouble.